RULES FRAMED UNDER COMPANIES ACT, 2013
CHAPTER I : PRELIMINARY
COMPANIES (SPECIFICATION OF DEFINITIONS DETAILS) RULES, 2014
In exercise of the powers conferred under sub-clause (ix) of clause (76), sub-clause (iii) of clause (77) of section 2, read with sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules, namely:—
Short title and commencement.
1. (1) These rules may be called the Companies (Specification of Definitions Details) Rules, 2014.
(2) They shall come into force on the date of their publication in the Official Gazette.
Definitions.
2. (1) In these rules, unless the context otherwise requires,—
(a)
“Act” means the Companies Act, 2013 (18 of 2013);
(b)
“Certifying Authority” for the purpose of Digital Signature Certificate means a person who has been granted a licence to issue a Digital Signature Certificate under section 24 of the Information Technology Act, 2000 (21 of 2000) and the Certified Filing Centre (CFC) under the Act;
(c)
“digital signature” means the digital signature as defined under clause (p) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(d)
“Digital Signature Certificate” means a Digital Signature Certificate as defined under clause (q) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(e)
“Director Identification Number” (DIN) means an identification number allotted by the Central Government to any individual, intending to be appointed as director or to any existing director of a company, for the purpose of his identification as a director of a company :
Provided that the Director Identification Number (DIN) obtained by the individuals prior to the notification of these rules shall be the DIN for the purpose of the Companies Act, 2013 :
Provided further that “Director Identification Number” (DIN) includes the Designated Partnership Identification Number (DPIN) issued under section 7 of the Limited Liability Partnership Act, 2008 (6 of 2009) and the rules made thereunder;
(f)
“e-Form” means a form in the electronic form as prescribed under the Act or the rules made thereunder and notified by the Central Government under the Act;
(g)
“electronic Mail” means the message sent, received or forwarded in digital form using any electronic communication mechanism that the message so sent, received or forwarded is storable and retrievable;
(h)
“electronic mode”, for the purposes of clause (42) of section 2 of the Act, means carrying out electronically based, whether main server is installed in India or not, including, but not limited to—
(i)
business to business and business to consumer transactions, data interchange and other digital supply transactions;
(ii)
offering to accept deposits or inviting deposits or accepting deposits or subscriptions in securities, in India or from citizens of India;
(iii)
financial settlements, web based marketing, advisory and transactional services, database services and products, supply chain management;
(iv)
online services such as telemarketing, telecommuting, telemedicine, education and information research; and
(v)
all related data communication services,
whether conducted by e-mail, mobile devices, social media, cloud computing, document management, voice or data transmission or otherwise;
(i)
“electronic record” means the electronic record as defined under clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000;
(j)
“electronic Registry” means an electronic repository or storage system of the Central Government in which the information or documents are received, stored, protected and preserved in electronic form;
(k)
“Executive Director” means a whole time director as defined in clause (94) of section 2 of the Act;
(l)
“Fees” means the fees as specified in the Companies (Registration Offices and Fees) Rules, 2014;
(m)
“Form” means a form set forth in the Act or the rules made thereunder which shall be used for the matter to which it relates;
(n)
“Pre-fill” means the automated process of data input by the computer system from the database maintained in electronic registry of the Central Government;
(o)
“Registrar’s Front Office” means an office maintained by the Central Government or an agency authorised by it to facilitate e-filing of documents into the electronic registry and their inspection and viewing;
(p)
“Regional Director” means the person appointed by the Central Government in the Ministry of Corporate Affairs as a Regional Director;
(q)
“section” means the section of the Act;
(r)
“Total Share Capital”, for the purposes of clause (6) and clause (87) of section 2, means the aggregate of the—
(a)
paid-up equity share capital; and
(b)
convertible preference share capital;
(s)
For the purposes of clause (d) of sub-section (1) of section 164 and clause (f) of sub-section (1) of section 167 of the Act, “or otherwise” means any offence in respect of which he has been convicted by a Court under this Act or the Companies Act, 1956;
(2) The words and expressions used in these rules but not defined and defined in the Act or in (i) the Securities Contracts (Regulation) Act, 1956 (42 of 1956) or (ii) the Securities and Exchange Board of India Act, 1992 (15 of 1992) or (iii) the Depositories Act, 1996 (22 of 1996) or (iv) the Information Technology Act, 2000 (21 of 2000) or rules and regulations made thereunder shall have the meanings respectively assigned to them under the Act or those Acts.
Related party.
3. For the purposes of sub-clause (ix) of clause (76) of section 2 of the Act, a director or key managerial personnel of the holding company or his relative with reference to a company, shall be deemed to be a related party.
List of relatives in terms of clause (77) of section 2.
4. A person shall be deemed to be the relative of another, if he or she is related to another in the following manner, namely:—
(1)
Father :
Provided that the term “Father” includes step-father.
(2)
Mother :
Provided that the term “Mother” includes the step-mother.
(3)
Son :
Provided that the term “Son” includes the step-son.
(4)
Son’s wife.
(5)
Daughter.
(6)
Daughter’s husband.
(7)
Brother :
Provided that the term “Brother” includes the step-brother;
(8)
Sister :
Provided that the term “Sister” includes the step-sister.
CHAPTER II : INCORPORATION OF COMPANY AND MATTERS INCIDENTAL THERETO
COMPANIES (INCORPORATION) RULES, 2014
In exercise of the powers conferred under section 3, section 4, sub-sections (5) and (6) of section 5, section 6, sub-sections (1) and (2) of section 7, sub-sections (1) and (2) of section 8, clauses (a) and (b) of sub-section (1) of section 11, sub-sections (2), (3), (4) and (5) of section 12, sub-sections (3), (4) and proviso to sub-section (5) of section 13, sub-section (2) of section 14, sub-section (1) of section 17, sub-sections (1) and (2) of section 20 read with sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013) and in supersession of the Companies (Central Government’s) General Rules and Forms, 1956 or any other relevant rules prescribed under the Companies Act, 1956 (1 of 1956) on matters covered under these rules, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely:—
Short title and commencement.
1. (1) These rules may be called the Companies (Incorporation) Rules, 2014.
(2) They shall come into force on the Ist day of April, 2014.
Definitions.
2. (1) In these rules, unless the context otherwise requires,—
(a)
“Act” means the Companies Act, 2013 (18 of 2013);
(b)
“Annexure” means the Annexure to these rules;
(c)
“Form” or “e-Form” means a form in the electronic form or non-electronic form as specified under the Act or Rules made thereunder and notified by the Central Government under the Act;
(d)
“Fees” means fees as specified in the Companies (Registration Offices and Fees) Rules, 2014;
(e)
“Regional Director” means the person appointed by the Central Government in the Ministry of Corporate Affairs as a Regional Director;
(f)
“section” means the section of the Act;
(2) Words and expressions used in these rules but not defined and defined in the Act or in Companies (Specification of Definitions Details) Rules, 2014 shall have the meanings respectively assigned to them in the Act and said rules.
One Person Company.
3. (1) Only a natural person who is an Indian citizen and resident in India—
(a)
shall be eligible to incorporate a One Person Company;
(b)
shall be a nominee for the sole member of a One Person Company.
Explanation.—For the purposes of this rule, the term “resident in India” means a person who has stayed in India for a period of not less than one hundred and eighty two days during the immediately preceding one calendar year.
(2) No person shall be eligible to incorporate more than a One Person Company or become nominee in more than one such company.
(3) Where a natural person, being member in One Person Company in accordance with this rule becomes a member in another such Company by virtue of his being a nominee in that One Person Company, such person shall meet the eligibility criteria specified in sub-rule (2) within a period of one hundred and eighty days.
(4) No minor shall become member or nominee of the One Person Company or can hold share with beneficial interest.
(5) Such Company cannot be incorporated or converted into a company under section 8 of the Act.
(6) Such Company cannot carry out Non-Banking Financial Investment activities including investment in securities of any body corporates.
(7) No such company can convert voluntarily into any kind of company unless two years have expired from the date of incorporation of One Person Company, except threshold limit (paid up share capital) is increased beyond fifty lakh rupees or its average annual turnover during the relevant period exceeds two crore rupees.
Nomination by the subscriber or member of One Person Company.
4. For the purposes of first proviso to sub-section (1) of section 3—
(1)
The subscriber to the memorandum of a One Person Company shall nominate a person, after obtaining prior written consent of such person, who shall, in the event of the subscriber’s death or his incapacity to contract, become the member of that One Person Company.
(2)
The name of the person nominated under sub-rule (1) shall be mentioned in the memorandum of One Person Company and such nomination in Form No. INC. 2 along with consent of such nominee obtained in Form No. INC. 3 and fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 shall be filed with the Registrar at the time of incorporation of the company along with itsmemorandum and articles.
(3)
The person nominated by the subscriber or member of a One Person Company may, withdraw his consent by giving a notice in writing to such sole member and to the One Person Company :
Provided that the sole member shall nominate another person as nominee within fifteen days of the receipt of the notice of withdrawal and shall send an intimation of such nomination in writing to the Company, along with the written consent of such other person so nominated in Form No. INC. 3.
(4)
The company shall within thirty days of receipt of the notice of withdrawal of consent under sub-rule (3) file with the Registrar, a notice of such withdrawal of consent and the intimation of the name of another person nominated by the sole member in Form No. INC. 4 along with fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 and the written consent of such another person so nominated in Form No. INC. 3.
(5)
The subscriber or member of a One Person Company may, by intimation in writing to the company, change the name of the person nominated by him at any time for any reason including in case of death or incapacity to contract of nominee and nominate another person after obtaining the prior consent of such another person in Form No. INC. 3 :
Provided that the company shall, on the receipt of such intimation, file with the Registrar, a notice of such change in Form No. INC.4 along with fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 and with the written consent of the new nominee in Form No. INC. 3 within thrity days of receipt of intimation of the change.
(6)
Where the sole member of One Person Company ceases to be the member in the event of death or incapacity to contract and his nominee becomes the member of such One Person Company, such new member shall nominate within fifteen days of becoming member, a person who shall in the event of his death or his incapacity to contract become the member of such company, and the company shall file with the Registrar an intimation of such cessation and nomination in Form No. INC. 4 along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 within thirty days of the change in membership and with the prior written consent of the person so nominated in Form No. INC. 3.
Penalty.
5. If One Person Company or any officer of such company contravenes the provisions of these rules, One Person Company or any officer of the One Person Company shall be punishable with fine which may extend to ten thousand rupees and with a further fine which may extend to one thousand rupees for every day after the first during which such contravention continues.
One Person Company to convert itself into a public company or a private company in certain cases.
6. (1) Where the paid up share capital of an One Person Company exceeds fifty lakh rupees or its average annual turnover during the relevant period exceeds two crore rupees, it shall cease to be entitled to continue as a One Person Company.
(2) Such One Person Company shall be required to convert itself, within six months of the date on which its paid up share capital is increased beyond fifty lakh rupees or the last day of the relevant period during which its average annual turnover exceeds two crore rupees as the case may be, into either a private company with minimum of two members and two directors or a public company with at least of seven members and three directors in accordance with the provisions of section 18 of the Act.
(3) The One Person Company shall alter its memorandum and articles by passing a resolution in accordance with sub-section (3) of section 122 of the Act to give effect to the conversion and to make necessary changes incidental thereto.
(4) The One Person Company shall within period of sixty days from the date of applicability of sub-rule (1), give a notice to the Registrar in Form No. INC. 5 informing that it has ceased to be a One Person Company and that it is now required to convert itself into a private company or a public company by virtue of its paid up share capital or average annual turnover, having exceeded the threshold limit laid down in sub-rule (1).
Explanation.—For the purposes of this rule,- “relevant period” means the period of immediately preceding three consecutive financial years.
(5) If One Person Company or any officer of the One Person Company contravenes the provisions of these rules, One Person Company or any officer of the One Person Company shall be punishable with fine which may extend to ten thousand rupees and with a further fine which may extend to one thousand rupees for every day after the first during which such contravention continues.
(6) A One Person company can get itself converted into a Private or Public company after increasing the minimum number of members and directors to two or minimum of seven members and two or three directors as the case may be, and by maintaining the minimum paid-up capital as per requirements of the Act for such class of company and by making due compliance of section 18 of the Act for conversion.
Conversion of private company into One Person Company.
7. (1) A private company other than a company registered under section 8 of the Act having paid up share capital of fifty lakhs rupees or less or average annual turnover during the relevant period is two crore rupees or less may convert itself into one person company by passing a special resolution in the general meeting.
(2) Before passing such resolution, the company shall obtain No objection in writing from members and creditors.
(3) The one person 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) The company shall file an application in Form No. INC. 6 for its conversion into One Person Companyalong with fees as provided in the Companies (Registration Offices and Fees) Rules, 2014, by attaching the following documents, namely:—
(i)
the directors of the company shall give a declaration by way of affidavit duly sworn in confirming that all members and creditors of the company have given their consent for conversion, the paid up share capital company is fifty lakhs rupees or less or average annual turnover is less than two crores rupees, as the case may be;
(ii)
the list of members and list of creditors;
(iii)
the latest Audited Balance Sheet and the Profit and Loss Account; and
(iv)
the copy of No Objection letter of secured creditors.
(5) On being satisfied and complied with requirements stated herein the Registrar shall issue the Certificate.
Undesirable names.
8. (1) In determining whether a proposed name is identical with another, the differences on account of the following shall be disregarded—
(a)
the words like Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP, Limited Liability Partnership;
(b)
words appearing at the end of the names—company, and company, co., co, corporation, corp, corpn, corp.;
(c)
plural version of any of the words appearing in the name;
(d)
type and case of letters, spacing between letters and punctuation marks;
(e)
joining words together or separating the words does not make a name distinguishable from a name that uses the similar, separated or joined words;
(f)
use of a different tense or number of the same word does not distinguish one name from another;
(g)
using different phonetic spellings or spelling variations shall not be considered as distinguishing one name from another. Illustration (For example, P.Q. Industries limited is existing then P and Q Industries or Pee Que Industries or P n Q Industries or P & Q Industries shall not be allowed and similarly if a name contains numeric character like 3, resemblance shall be checked with ‘Three’ also;)
(h)
misspelled words, whether intentionally misspelled or not, do not conflict with the similar, properly spelled words;
(i)
the addition of an internet related designation, such as .com, .net, .edu, .gov, .org, .in does not make a name distinguishable from another, even where (.) is written as ‘dot’;
(j)
the addition of words like New, Modern, Nav, Shri, Sri, Shree, Sree, Om, Jai, Sai, The, etc. does not make a name distinguishable from an existing name and similarly, if it is different from the name of the existing company only to the extent of adding the name of the place, the same shall not be allowed; such names may be allowed only if no objection from the existing company by way of Board resolution is submitted;
(k)
different combination of the same words does not make a name distinguishable from an existing name,e.g., if there is a company in existence by the name of “Builders and Contractors Limited”, the name “Contractors and Builders Limited” shall not be allowed unless it is change of name of existing company;
(l)
if the proposed name is the Hindi or English translation or transliteration of the name of an existing company or limited liability partnership in English or Hindi, as the case may be.
(2) (a) The name shall be considered undesirable, if—
(i)
it attracts the provisions of section 3 of the Emblems and Names (Prevention and Improper Use) Act, 1950 (12 of 1950);
(ii)
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;
(iii)
it includes any word or words which are offensive to any section of the people;
(b) The name shall also be considered undesirable, if—
(i)
the proposed name is identical with or too nearly resembles the name of a limited liability partnership;
(ii)
it is not in consonance with the principal objects of the company as set out in the memorandum of association :
Provided that every name need not be necessarily indicative of the objects of the company, but when there is some indication of objects in the name, then it shall be in conformity with the objectsmentioned in the memorandum;
(iii)
the company’s main business is financing, leasing, chit fund, investments, securities or combination thereof, such name shall not be allowed unless the name is indicative of such related financial activities, viz., Chit Fund or Investment or Loan, etc.;
(iv)
it resembles closely the popular or abbreviated description of an existing company or limited liability partnership;
(v)
the proposed name is identical with or too nearly resembles the name of a company or limited liability partnership incorporated outside India and reserved by such company or limited liability partnership with the Registrar :
Provided that if a foreign company is incorporating its subsidiary company in India, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian state or city, if otherwise available;
(vi)
any part of the proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.;
Explanation.—For the purposes of this sub-clause, it is hereby clarified that the name including phrase‘Electoral Trust’ may be allowed for Registration of companies to be formed under section 8 of the Act, in accordance with the Electoral Trusts Scheme, 2013 notified by the Central Board of Direct Taxes (CBDT) :
Provided that name application is accompanied with an affidavit to the effect that the name to be obtained shall be only for the purpose of registration of companies under Electoral Trust Scheme as notified by the Central Board of Direct Taxes;
(vii)
the proposed name contains the words ‘British India’;
(viii)
the proposed name implies association or connection with embassy or consulate or a foreign government;
(ix)
the proposed name includes or implies association or connection with or patronage of a national hero or any person held in high esteem or important personages who occupied or are occupying important positions in Government;
(x)
the proposed name is vague or an abbreviated name such as ‘ABC limited’ or ’23K limited’ or ‘DJMO’ Ltd: abbreviated name based on the name of the promoters will not be allowed. For example:- BMCD Limited representing first alphabet of the name of the promoter like Bharat, Mahesh, Chandan and David :
Provided that existing company may use its abbreviated name as part of the name for formation of a new company as subsidiary or joint venture or associate company but such joint venture or associated company shall not have an abbreviated name only e.g. Delhi Paper Mills Limited can get a joint venture or associated company as DPM Papers Limited and not as DPM Limited :
Provided further that the companies well known in their respective field by abbreviated names are allowed to change their names to abbreviation of their existing name after following the requirements of the Act;
(xi)
the proposed name is identical to the name of a company dissolved as a result of liquidation proceeding and a period of two years have not elapsed from the date of such dissolution :
Provided that if the proposed name is identical with the name of a company which is struck off in pursuance of action under section 248 of the Act, then the same shall not be allowed before the expiry of twenty years from the publication in the Official Gazette being so struck off;
(xii)
it is identical with or too nearly resembles the name of a limited liability partnership in liquidation or the name of a limited liability partnership which is struck off up to a period of five years;
(xiii)
the proposed name include words such as ‘Insurance’, ‘Bank’, ‘Stock Exchange’, ‘Venture Capital’, ‘Asset Management’, ‘Nidhi’, ‘Mutual fund’ etc., unless a declaration is submitted by the applicant that the requirements mandated by the respective regulator, such as IRDA, RBI, SEBI, MCA etc. have been complied with by the applicant;
(xiv)
the proposed name includes the word “State”, the same shall be allowed only in case the company is a government company;
(xv)
the proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited;
(xvi)
the name is only a general one, like Cotton Textile Mills Ltd. or Silk Manufacturing Ltd., and not Lakshmi Silk Manufacturing Co. Ltd.;
(xvii)
it is intended or likely to produce a misleading impression regarding the scope or scale of its activities which would be beyond the resources at its disposal;
(xviii)
proposed name includes name of any foreign country or any city in a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like Memorandum Of Understanding with a company of such country :
Provided that the name combining the name of a foreign country with the use of India like India Japan or Japan India shall be allowed if, there is a government to government participation or patronage and no company shall be incorporated using the name of an enemy country.
Explanation.—For the purposes of this clause, enemy country means so declared by the Central Government from time to time.
(3) If any company has changed its activities which are not reflected in its name, it shall change its name in line with its activities within a period of six months from the change of activities after complying with all the provisions as applicable to change of name.
(4) In case the key word used in the name proposed is the name of a person other than the name(s) of the promoters or their close blood relatives, No objection from such other person(s) shall be attached with the application for name. In case the name includes the name of relatives, the proof of relation shall be attached and it shall be mandatory to furnish the significance and proof thereof for use of coined words made out of the name of the promoters or their relatives.
(5) The applicant shall declare in affirmative or negative (to affirm or deny) whether they are using or have been using in the last five years , the name applied for incorporation of company or LLP in any other business constitution like Sole proprietor or Partnership or any other incorporated or unincorporated entity and if, yes details thereof and No Objection Certificate from other partners and associates for use of such name by the proposed Company or LLP, as the case may be, and also a declaration as to whether such other business shall be taken over by the proposed company or LLP or not.
(6) 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, forest, Corporation and the like;
(o)
Municipal;
(p)
Panchayat;
(q)
Development Authority;
(r)
Prime Minister or Chief Minister;
(s)
Minister;
(t)
Nation;
(u)
Forest corporation;
(v)
Development Scheme;
(w)
Statute or Statutory;
(x)
Court or Judiciary;
(y)
Governor;
(z)
Development Scheme or the use of word Scheme with the name of Government(s), State, India, Bharat or any government authority or in any manner resembling with the schemes launched by Central, state or local Governments and authorities; and
(za)
Bureau.
(7) For the Companies under section 8 of the Act, the name shall include the words foundation, Forum, Association, Federation, Chambers, Confederation, council, Electoral trust and the like etc. Every company incorporated as a “Nidhi” shall have the last words ‘Nidhi Limited’ as part of its name.
(8) The names released on change of name by any company shall remain in data base and shall not be allowed to be taken by any other company including the group company of the company who has changed the name for a period of three years from the date of change subject to specific direction from the competent authority in the course of compromise, arrangement and amalgamation.
9. Reservation of name.
An application for the reservation of a name shall be made in Form No. INC.1 along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014.
10. Where the articles contain the provisions for entrenchment, the company shall give notice to the Registrar of such provisions in Form No. INC. 2 or Form No. INC. 7, as the case may be, along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 at the time of incorporation of the company or in case of existing companies, the same shall be filed in Form No. MGT. 14 within thirty days from the date of entrenchment of the articles, as the case may be, along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014.
11. The model articles as prescribed in Tables F, G, H, I and J of Schedule I may be adopted by a company as may be applicable to the case of the company, either in totality or otherwise.
Application for incorporation of companies.
12. An application shall be filed, with the Registrar within whose jurisdiction the registered office of the company is proposed to be situated, in Form No.INC.2 (for One Person Company) and Form No. INC.7 (other than One Person Company) along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 for registration of a company.
Signing of memorandum and articles.
13. The Memorandum and Articles of Association of the company shall be signed in the following manner, namely:—
(1)
The memorandum and articles of association of the company shall be signed by each subscriber to thememorandum, 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”.
(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.
(3)
Such person shall also read and explain the contents of the memorandum and articles of association to the subscriber and make an endorsement to that effect on the memorandum and articles of association.
(4)
Where the subscriber to the memorandum is a body corporate, the memorandum and articles of association shall be signed by director, officer or employee of the body corporate duly authorized in this behalf by a resolution of the board of directors of the body corporate and where the subscriber is a Limited Liability Partnership, it shall be signed by a partner of the Limited Liability Partnership, duly authorized by a resolution approved by all the partners of the Limited Liability Partnership :
Provided that in either case, the person so authorized shall not, at the same time, be a subscriber to thememorandum and articles of Association.
(5)
Where subscriber to the memorandum is a foreign national residing outside India—
(a)
in a country in any part of the Commonwealth, his signatures and address on the memorandumand articles of association and proof of identity shall be notarized by a Notary (Public) in that part of the Commonwealth;
(b)
in a country which is a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized before the Notary (Public) of the country of his origin and be duly apostillised in accordance with the said Hague Convention;
(c)
in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity, shall be notarized before the Notary (Public) of such country and the certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (40 of 1948) or, where there is no such officer by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889 (52 and 53 Vic. C. (10), or in any Act amending the same;
(d)
visited in India and intended to incorporate a company, in such case the incorporation shall be allowed if, he/she is having a valid Business Visa.
Explanation.—For the purposes of this clause, it is hereby clarified that, in case of Person is of Indian Origin or Overseas Citizen of India, requirement of business Visa shall not be applicable.
Declaration by professionals.
14. For the purposes of clause (b) of sub-section (1) of section 7, the declaration by an advocate, a Chartered Accountant, Cost accountant or Company Secretary in practice shall be in Form No. INC.8.
Explanation (i) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (ii) “Cost Accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 and (iii) “company secretary” means a “company secretary” or “secretary” means as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980.
Affidavit from subscribers and first directors.
15. For the purposes of clause (c) of sub-section (1) of section 7, the affidavit shall be submitted by each of the subscribers to the memorandum and each of the first directors named in the articles in Form No. INC.9
Particulars of every subscriber to be filed with the Registrar at the time of incorporation.
16. (1) The following particulars of every subscriber to the memorandum shall be filed with the Registrar—
(a)
Name (including surname or family name) and recent Photograph affixed and scan with MOA and AOA:
(b)
Father’s/Mother’s/name:
(c)
Nationality:
(d)
Date of Birth:
(e)
Place of Birth (District and State):
(f)
Educational qualification:
(g)
Occupation:
(h)
Income-tax permanent account number:
(i)
Permanent residential address and also Present address (Time since residing at present address and address of previous residence address(es) if stay of present address is less than one year) similarly the office/business addresses :
(j)
Email id of Subscriber :
(k)
Phone No. of Subscriber :
(l)
Fax No. of Subscriber (optional)
Explanation.—Information related to (i) to (l) shall be of the individual subscriber and not of the professional engaged in the incorporation of the company;
(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
(n)
Residential proof such as Bank Statement,
Electricity Bill, Telephone/Mobile Bill :
Provided that Bank statement Electricity bill, Telephone or Mobile bill shall not be more than two months old;
(o)
Proof of nationality in case the subscriber is a foreign national.
(p)
If the subscriber is already a director or promoter of a company(s), the particulars relating to—
(i)
Name of the company;
(ii)
Corporate Identity Number;
(iii)
Whether interested as a director or promoter;
(q)
the specimen signature and latest photograph duly verified by the banker or notary shall be in the prescribed Form No. INC.10.
(2) Where the subscriber to the memorandum is a body corporate, then the following particulars shall be filed with the Registrar—
(a)
Corporate Identity Number of the Company or Registration number of the body corporate, if any;
(b)
GLN, if any;
(c)
the name of the body corporate;
(d)
the registered office address or principal place of business;
(e)
E-mail Id;
(f)
if the body corporate is a company, certified true copy of the board resolution specifying inter alia t