Company Law

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Declaration of Commencement of Business by Company

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Declaration of Commencement of Business by Company 1

The new Section 10A has been introduced through Companies Amendment Ordinance 2018 with effect from 2nd November , 2018 which provides that every company is now required to file e Form INC 20A with Registrar of Companies within 180 days of its Incorporation for commencement of its business.

Main Requirements for Filing Form INC 20A:

  • The Subscribers has paid the share subscription amount to the Company
  • That the Company has obtained the regulatory approval required to be obtained for commencement of business for business activities which are specially regulated by other sectoral regulators like SEBI, RBI, IRDA etc.. 

What is required to done now :

  • No waiting for Opening of Bank Account 
  • Deposit Share Subscription amount in Company Bank Account 
  • File Form INC-22 for verification of Registered office 
  • File Form INC-20A within ASAP, not later than 180 days of Incorporation of Company 

How to pay Share Subscription amount to Company :

As normal practice every company is registered with Rs. 1Lakh  paid up capital, now it is compulsory that Rs. 1Lakh should be compulsory deposited in Company Bank Account within 180 days of its registration, so it is advisable to avoid incorporating company with higher paid up amount and promoters should go with Rs. 1000/10000 like paid up amount that can easily be paid to company account and Authorized capital of the company should be made at higher limit , so to issue shares at the later stage if required capital is introduced afterwards. 

Lesser amount can also be paid to company by cash , so having lesser amount of paid up capital will help you to better comply with this section. It Is always advisable to deposit the subscription amount to company bank Account as soon as Bank Account of newly incorporated company is opened.  

Section 10A.Commencement of business etc.


(1) A company incorporated after the commencement of the Companies (Amendment) Ordinance, 2018 and having a share capital shall not commence any business or exercise any borrowing powers unless—
(a) a declaration is filed by a director within a period of one hundred and eighty days of the date of incorporation of the company in such form and verified in such manner as may be prescribed, with the Registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and 
(b) The company has filed with the Registrar a verification of its registered office as provided in sub-­section (2) of section 12.  

(2) If any default is made in complying with the requirements of this section, the company shall be liable to a penalty of fifty thousand rupees and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues but not exceeding an amount of one lakh rupees.

 (3) Where no declaration has been filed with the Registrar under clause (a) of sub-section (1) within a period of one hundred and eighty days of the date of incorporation of the company and the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may, without prejudice to the provisions of sub-section (2), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.

How to Register Sole Proprietorship Firm Online in India

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How to Change the Nominee or Member of One Person Company

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Every One Person Company shall always have Nominee of Member, that who shall become the member of the company in the event of death or incapacity to contract of member of Once Person of the Company.

First Nominee is declared at the time of Incorporation of company  with consent of nominee form INC -3

Now in case Member of One Person of the company wanted to Change the Nominee of Member than he can do so by Filing prescribed form to Registrar of Companies in Form INC-4

Form INC-4 is required to Filed in Following Cases :

  1. Notice of withdrawal of consent by the nominee of OPC
  2. Intimation about change in the name of the nominee of OPC
  3. Intimation of Cessation

Notice of withdrawal of consent by the nominee of OPC: 

Form INC-4 is required to filed when the Nominee has withdrawal consent to act as nominee of OPC, than the member of the Company shall nominate any other person as Nominee of the Company by taking consent of nominee in form INC-3 along with ID and Address Proof of Nominee.

Intimation about change in the name of the nominee of OPC:

Form INC-4 is required to be when there is change in nominee due to Change in Nominee by Member of OPC

Intimation of Cessation:

When the Member of the Company ceased to be member of the Company due to

  • transfer of ownership of the company to other person ,
  • Death of the member
  • Incapacity of member to contract

In this case the transferee or the nominee will become the member of the company.

In case of Change in Member either member can choose to Change the Nominee to new person or the existing nominee can remain the nominee.

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Passing of Resolution by Circulation

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Section 175(1) of Companies Act, 2013

175. (1) No resolution shall be deemed to have been duly passed by the Board or by a committee thereof by circulation, unless the resolution has been circulated in draft, together with the necessary papers, if any, to all the directors, or members of the committee, as the case may be, at their addresses registered with the company in India by hand delivery or by post or by courier, or through such electronic means (A resolution in draft form may be circulated to the directors together with the necessary papers for seeking their approval, by electronic means which may include E-mail or fax)  and has been approved by a majority of the directors or members, who are entitled to vote on the resolution:

Provided that, where not less than one-third of the total number of directors of the company for the time being require that any resolution under circulation must be decided at a meeting, the chairperson shall put the resolution to be decided at a meeting of the Board.

(2) A resolution under sub-section (1) shall be noted at a subsequent meeting of the Board or the committee thereof, as the case may be, and made part of the minutes of such meeting

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Contract by One Person Company

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(1) Where One Person Company limited by shares or by guarantee enters into a contract with the sole member of the company who is also the director of the company, the company shall, unless the contract is in writing, ensure that the terms of the contract or offer are contained in a memorandum or are recorded in the minutes of the first meeting of the Board of Directors of the company held next after entering into contract:

Provided that nothing in this sub-section shall apply to contracts entered into by the company in the ordinary course of its business.

(2) The company shall inform the Registrar about every contract entered into by the company and recorded in the minutes of the meeting of its Board of Directors under sub-section (1) within a period of fifteen days of the date of approval by the Board of Directors.

Section 193 of Companies Act, 2013

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Duties of Director of Company – Companies Act, 2013

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Section 166 of the Companies Act, 2013 provides for Duties of Directors

  • A director of a company shall act in accordance with the articles of the company.
  • A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of environment.
  • A director of a company shall exercise his duties with due and reasonable care, skill and diligence and shall exercise independent judgment.
  • A director of a company shall not involve in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company.
  • A director of a company shall not achieve or attempt to achieve any undue gain or advantage either to himself or to his relatives, partners, or associates and if such director is found guilty of making any undue gain, he shall be liable to pay an amount equal to that gain to the company.
  • A director of a company shall not assign his office and any assignment so made shall be void.

Penal Provisions :

If a director of the company contravenes the provisions of this section such director shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.

Beside above Director’s of the Company must ensure every time that Company is Complying with all applicable laws that are applicable to company form time to time. 

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Conversion of Private Limited Company into One Person Company

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As Companies Act 2013 provides for Incorporation of One Person Company with single Shareholders, now this has enable that the existing Private Limited Companies can be converted to One Person Company (OPC).

Legal Provision relating to Conversion of Private Limited Company into OPC:-

Section 18 of Companies Act, 2013:

(1) A company of any class registered under this Act may convert itself as a company of other class under this Act by alteration of memorandum and articles of the company in accordance with the provisions of this Chapter.
(2) Where the conversion is required to be done under this section, the Registrar shall on an application made by the company, after satisfying himself that the provisions of this Chapter applicable for registration of companies have been complied with, close the former registration of the company and after registering the documents referred to in sub-section (1), issue a certificate of incorporation in the same manner as its first registration.
(3) The registration of a company under this section shall not affect any debts, liabilities, obligations or contracts incurred or entered into, by or on behalf of the company before conversion and such debts, liabilities, obligations and contracts may be enforced in the manner as if such registration had not been done.

Rule 7:

(1) A private company other than a company registered under section 8 of the Act having paid up share capital of rupees 50 lakhs or less or average annual turnover during the relevant period as defined in explanation to rule 8(4) is rupees 2 crore or less may convert itself into OPC by passing a special resolution in the general meeting.

(2) Before passing such resolution, company shall obtain No objection in writing from members and creditors.
(3) Company shall file copy of the special resolution with the Registrar of Companies within thirty days from the date of passing such resolution in Form No. MGT-14.
(4) Company shall file an application in Form No.INC-6 for its conversion into OPC along with fees as provided in in Companies (Registration offices and fees) Rules, 2014, by attaching the following documents:-
(i) Directors of the company shall give a declaration by way of affidavit duly sworn in conforming that all members and creditors of the company have given their consent for conversion, the paid up capital company is rupees 50 lakhs or less or turnover is less than rupees 2 crores as the case may be,
(ii) List of members and list of creditors,
(iii) Latest Audited Balance Sheet on the Profit and Loss Account and
(iv) Copy of No Objection letter of secured creditors.

E Form required to be Filed for Conversion of Private Limited Company into OPC:

  1. Form MGT-14 for Passing of Special Resolution
  2. Form INC-6 for Application for Conversion

Documents required to be attached with E Form INC-6 for Conversion of One Person Company into OPC:

Following Documents are mandatory for conversion of Private Limited Company into OPC:
 Affidavit
 Certified true copy of minutes, list of creditors and list of members.
 Copy of NOC of every creditors.
 Consent of the nominee in Form No. INC-3 along with all enclosures
 Copy of PAN card of the nominee and member.
 Proof of identity of the nominee and member.
 Residential proof of the nominee and member

 

Do you want to convert your Private Limited Company into OPC : connect at mail@fastlegal.in, or whatsapp at https://wa.me/919782280098 or call at 9782280098

 

[jotform id=”61411444894457″]

Private Limited Company Registration in Jaipur
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Abridged form of Directors Report for OPC and Small Companies

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In the Recent Update from MCA , MCA has issued amended rules  for Companies in respect to Preparation of Board Report for OPC and Small Companies where ministry as provided relief to Company Directors for preparation of Board Report that will not require much information and provided mandatory points that are required to be disclosed in the board report.

The Board Shall be prepared on the basis on standalone Financial Statement and shall be in abridged form and contain the following points :

  1. The Web Address, if any where annual return has been placed
  2. Number of meeting of Board of Directors of the company held During the Financial Year
  3. Directors Responsibility Statement
  4. Details in respect of frauds reported by auditors
  5. Explanation and comments by board on qualification or adverse remarks by auditors
  6. Financial Summery of Company during the financial year
  7. Statement of Company affairs
  8. Material Changes form the date of Closure of Financial Year in nature of business of the company and their impact on financial position of the company.
  9. All details of Directors who were appointed and resigned during the year.
  10. All Details of Significant material order passed by Regulators
  11. Details with contracts and arrangements with related parties in Form AOC-2

Companies (Accounts) Amendment Rules, 2018 dated 31.07.2018 :

Download here

http://www.mca.gov.in/Ministry/pdf/companisAccountsRules_31072018.pdf

 

Do you own small Private Limited Company or One Person Company and need compliance support for Annual and Event Based legal Filings – Connect at 9782280098 or email at mail@fastlegal.in

[jotform id=”61411444894457″]

 

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How to File Form DIR-3 KYC in India – Information and Documents Required for Filing Form DIR-3 KYC

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As part of updating its registry, MCA would be conducting KYC of all Directors of all companies annually through the eform DIR-3KYC. Accordingly, every Director who has been allotted DIN on or before 31st March, 2018 and whose DIN is in ‘Approved’ status, would be mandatorily required to file form DIR-3 KYC on or before 31st August,2018
Eform DIR-3KYC (Application for KYC of Directors ) is now available on MCA web-portal for necessary compliance by every Individual having obtained DIN on or before 31st March,2018.

Documents Required for Filing Form DIR-3 KYC to MCA :

  1.  Aadhar Card
  2. Passport Copy, If obatined
  3. Current Address proof – Bank Statement / Utility Bill
  4. PAN based Digital Signature 

Information  Required for Filing Form DIR-3 KYC to MCA :-

  1. DIN (Director’s Identification Number) of Director
  2. Director’s Full Name as per PAN
  3. Father’s Name as per PAN
  4. Whether Indian Citizen or Not
  5. Nationality of Director
  6. For Foreign National, Nationality will be as declared in Passport
  7. Whether Resident in India or Not
  8. In case, Non-Resident – Passport will be mandatory
  9. Date of Birth as per PAN
  10. Gender
  11. Income Tax PAN (Mandatory for Indian Citizens)
  12. Valid Passport (If having), Passport Number needs to be entered
  13. Aadhaar Number (Mandatory in case of Indian Citizen)
  14. Personal Mobile Number and E-Mail Id for the Verification of OTP
  15. Permanent Residential Address
  16. Present Residential Address

DIR-3KYC Mandatory for Foreign Directors also.

Penalty if not filed within 31st August 2018 – Rs.5000

If Not filed within due date DIN of Directors will be deactivated and Directors will be disqualified to act as Director.
KYC mandatory even for disqualified Directors.
If you are presently not a Director or Designated Partner in any company or LLP  and obtained DIN earlier than also you are required to file Form DIR3KYC. 
Please note this is Annual KYC compliance required to be made before 30th April every Year.
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Step by Step Procedure for Private Limited Company Registration in India

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Private Limited Company is the most common incorporated business organisation in India. It limits liability of its members & has a perpetual succession. For starting a Private Limited Company minimum 2 members and directors are required. In this article we provide a comprehensive guide to Private Limited Company registration as per the provisions of Companies Act,2013.

Type of Business Entities for doing business in India :

Private Limited Company :

Private Limited Company is the most popular structure for businesses and startups. Private Limited Company allows outside funding & Foreign Direct Investment easily. Private Limited Companies are required to hold Board Meetings,Register Secured Loans with Ministry of Corporate Affairs,Hold Members Meeting for Important matters,Make complete disclosures about important matters in their Board Report. Due to all these regulatory disclosures and requirements imposed on Private Limited Company by Company Law they tend  to be viewed with more credibility than a Limited Liability Partnership (LLP), One Person Company (OPC), or General Partnership.

Limited Liability Partnership:

Limited Liability Partnership is suitable for Service based industry (for example-web designing,architects,doctors etc.). In comparison to general partnerships it limits the liability of its Partners. However, if you’re looking to raise venture capital or attract talent with employee stock options, private limited is the way to go as LLPs cannot easily accommodate it.

Partnership Firm :

General Partnership Firm is thought to have lost its relevance since the introduction of the Limited Liability Partnership (LLP) because its partners have unlimited liability, which means they are personally liable for the debts of the business. However, low costs, ease of setting up and minimal compliance requirements make it a sensible option for some, such as home businesses that are unlikely to take on any debt. Registration is optional for General Partnerships.

Procedure for Incorporation of Private Limited Company

Following are the steps involved in Incorporation of a Private Limited Company in India:

Obtaining Digital Signature: 

Digital Signature is required to sign Incorporation application and other forms for regular compliance needs,It is issued by certifying authority (like Sify,Vsign, Emudra etc.).

Following are the documents required for obtaining Digital Signature for Directors:

1.) For Indian citizens & residents:

a.) Copy of Pan Card

b.) Copy of Driving license/Passport/Aadhar Card/Voters’ Identity Card

c.) Dully filled and signed Digital Signature Form.

2. For Foreign Nationals:

a.) Copy of Notarized or Appostilled Passport if the country is a party to hague convention.

b.) Dully filled and signed Digital Signature Form.

Name Approval Application in E form RUN:

Application for Name approval may be filled using E-FORM RUN . Care must be taken while applying for Name approval, Name of proposed Company must not resemble with an already registered Company and a Registered Trademark or with the mark for registration of which Trademark application has been filled.

We will help you to check the name availability for your new Company.

Preparation of Incorporation Documents:

  • Form INC -9 ( Declaration from First Subscribers and Directors )
  • Form DIR-2 (consent to Act as Director )
  • E MOA
  • E AOA

What is E MOA and E AOA :

  • E MOA is Memorandum of Association of the Company i.e. Constitutional  Document  in which Name of the Company , State of Registered Office of the Company, Main Objects of the company, Share Capital of the Company and Liability of Members are mentioned.
  • E AOA is Articles of Association of the Company i.e. in which Rules and Regulations for governing of the Company is mentioned.

Our Team will help you to get your E MOA and AOA drafting as your requirements.

Shareholding (Ownership)  in the Proposed Company , how it is decided :

In this case if you are two persons starting a New Company it is important that what ownership you will held in the proposed Company , Lets take and Example – We will Incorporate a Private Limited Company which will have Share capital Divided into 10000 Equity Share Shares of Rs. 10 Each in this case We divide 5000 Share each to both the persons , the ownership will be 50-50% for both the persons. Ownership decides the voting rights of members in the proposed Company.

In New Company Share are subscribed by mentioning the no of shares in the Subscription page of MOA of the Company and it is witnessed by  Company Secretary, Chartered Accountant or Cost Accountant in Practice.

Subscribing to Memorandum and Articles of Association:

By subscribing to Memorandum and Articles of Association members agree to become member of Proposed Company. Following are the manner for Subscribing to Memorandum and Articles of Association:

1.) If all the members are Indian resident Individuals:

Subscriber sheets of Moa & Aoa must be signed by respective individuals stating the shares subscribed against their name in Moa Subscriber Sheet.

2. If members include Body Corporate or only Body Corporate are members:

Subscriber Sheet must be signed by nominee of Body Corporate who is authorized by a resolution passed by Board of Directors for subscribing on behalf of Company and other individual subscribers.

3. In case foreigner are members of proposed Company:

 Subscriber Sheet of Moa & Aoa is required to be signed by respective individual or nominee of Body Corporate and must be Notarized by Notary Public of that Country if the country is not a party to Hague convention if that country is a party of Hague convention than it must be appostilled accordingly.

Filling of Incorporation Application to CRC:

Once all the above processes are completed than incorporation application may be filled using the forms available on website of Ministry of Corporate Affairs.

Obtaining DIN and Name Approval can directly be made through SPICE form. GST Registration can also be applied along with Spice form through AGILE.

Opening of Company Bank Account :

It is very much advisable to open a Company Current Bank Account as soon as company is registered, and deposit the subscription money to company bank account .

Filing of Form INC 20A for Commencement of business of Company :

The Company has to file form INC 20 A for Commencement of Business of the Company , Company cannot Commence and exercise borrowing powers if company does not file form INC 20A .

Place your Request for Private Limited Company Registration Online in India

Call us directly at 9782280098

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Condonation of Delay Scheme, 2018

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Companies registered under the Companies Act, 2013 (or its predecessor Act) are inter-alia required to file their Annual Financial statements and Annual Returns with the Registrar of Companies and non-filing of such reports is an offence under the said Act. Whereas, section 164(2) of the Act read with section 167 of the Companies Act,2013 [the Act], which provisions were commenced with effect from 01.04.2014, provide for disqualification of a director on account of default by a company in filing an annual return or a financial statement for a continuous period of three years.

Whereas, Rule 14 of the Companies (Appointment and Qualification of Directors) Rules, 2014 further prescribes that every director shall inform to the company concerned about his disqualification, if any, under section 164(2), in form DIR-8.

Whereas, consequent upon notification of provisions of section 164(2), Ministry of Corporate Affairs (MCA) had launched a Company Law Settlement Scheme 2014 providing an opportunity to the defaulting companies to clear their defaults within the time period specified therein and following the due process as notified.

Whereas, MCA in September 2017, identified 3,09,614 directors associated with the companies that had failed to file financial statements or annual returns in the MCA21 online registry for a continuous period of three financial years 2013-14 to 2015-16 in terms of provisions of section 164(2) r /w 167(1)(a) of the Act and they were barred from accessing the online registry and a list of such directors was published on the website of MCA.

Whereas, as a result of above action, there have been a spate of representations from industry, defaulting companies and their directors seeking an opportunity for the defaulting companies to become compliant and normalize operations.

Whereas, certain affected persons have also filed writ petitions before various High Courts seeking relief from the disqualification. Whereas, with a view to giving an opportunity for the non-compliant, defaulting companies to rectify the default, in exercise of its powers conferred under sections 403, 459 and 460 of the Companies Act, 2013, the Central Government has decided to introduce a Scheme namely “Condonation of Delay Scheme 2018” [CODS-2018] as follows.

1. The scheme shall come into force with effect from 01.01.2018 and shall remain in force up to 31.03.2018

2. Definitions – In this scheme, unless the context otherwise requires, – means the Companies Act,2013 and Companies Act, 1956 (where ever applicable);

ii. ‘overdue documents’ means the financial statements or the annual returns or other associated documents, as applicable, in the case of a defaulting company and refer to documents mentioned in paragraph 5 of the scheme.

iii. “Company” means a company as defined in clause of 20 of section 2 of the Companies Act, 2073;

iv. “Defaulting company// means a company which has not filed its financial statements or annual returns as required under the Companies Act, 1956 or Companies Act, 201.3, as the case may be, and the Rules made there under for a continuous period of three years.

v. “Designated authority” means the Registrar of Companies having jurisdiction over the registered office of the company.

3. Applicability: – This scheme is applicable to all defaulting companies (other than the companies which have been stuck off/ whose names have been removed from the register of companies under section 248(5) of the Act). A defaulting company is permitted to file its overdue documents which were due for filing till 30.06.2017 in accordance with the provisions of this Scheme.

4. Procedure to be followed for the purposes of the scheme:-

(1) In the case of defaulting companies whose names have not been removed from register of companies,-

i) The DINs of the concerned disqualified directors de-activated at present, shall be temporarily activated during the validity of the scheme to enable them to file the overdue documents.

ii) The defaulting company shall file the overdue documents in the respective prescribed eForms paying the statutori filing fee and additional fee payable as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014 for filing these overdue documents.

iii) The defaulting company after filing documents under this scheme, shall seek condonation of delay by filing form e-CODS attached to this scheme online on the MCA21 portal.. The fee for filing application eform CODS is Rs.30,000/- (Rs. Thirty Thousand only).

(iv) The DINs of the Directors associated with the defaulting companies that have not filed their overdue documents ancl the eform CODS, and these are not taken on record in the MCA21 registry and are still found to be disqualified on the conclusion of the scheme in terms of section 164(2)/w 167(1)(a) of the Act shall be liable to be deactivated on expiry of the scheme period. In the event of defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director’s DIN shall be re-activated only NCLT order of revival subject to the company having filing of all overdue documents.

5. Scheme not to apply for certain documents – This scheme shall not apply to the filing of documents other than the following overdue documents:

i) Form Number 208/MGT-7- Form for filing company having share capital.

ii) Form 21A/MGT-7- Particulars of Annual return Annual return by a for the company not having share capital.

iii) Form 23AC, 23ACA, 23AC-XBRL, 23ACA-XBRL, AOC-4, AOC-4(CFS), AOC (XBRL) and AOC-4(non-XBRL) – Forms for filing Balance Sheet/Financial Statement and profit and loss account.

iv”) Form 66 – Form for submission of Compliance Certificate with the Ilegistrar.

v) Form 238/ADT-1- Form for intimation for Appointment of Auditors.

6. The Registrar concerned shall withdraw the prosecution(s) pending if any before the concerned Court(s) for all documents filed under the scheme. However, this scheme is without prejudice to action under section 167(2) of the Act or civil and criminal liabilities, if any, of such disqualified directors during the period they remained disqualified.

7. At the conclusion of the Scheme, the Registrar shall take all necessary actions under the Companies Act, 1956 / 2013 against the companies who have not availed themselves of this Scheme and continue to be in default in filing the overdue documents.

8. The e-Form CODS 2018 would be available from 20.02.2018 or an alternate date, which will be intimated by the ministry on www.mca.gov.in. The stakeholder should complete the necessary procedural requirements and file overdue documents without waiting for the availability of the e-CODS form.