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THE COMPANIES(INCORPORATION) FIFTH AMENDMENT RULES 2021

The Ministry of Corporate Affairs has notified the Companies (Incorporation) Fifth Amendment Rules, 2021, thereby amending the Companies (Incorporation) Rules, 2014 by inserting Section 33A after Rule 33 of the Companies (Incorporation) Rules, 2014.

LET'S CONSIDER PROVISIONS OF SECTION 16 OF THE COMPANIES ACT, 2013

16. (1) If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name which,

(a) in the opinion of the Central Government, is identical with or too nearly resembles the name by which a company in existence had been previously registered, whether under this Act or any previous company law, it may direct the company to change its name and the company shall change its name or new name, as the case may be, within a period of three months from the issue of such direction, after adopting an ordinary resolution for the purpose;

Analysis of New Rule 33A inserted vide Companies (Incorporation) Fifth Amendment Rules, 2021

(b) on an application by a registered proprietor of a trade mark that the name is identical with or too nearly resembles to a registered trade mark of such proprietor under the Trade Marks Act, 1999, made to the Central Government within three years of incorporation or registration or change of name of the company, whether under this Act or any previous company law, in the opinion of the Central Government, is identical with or too nearly resembles to an existing trade mark, it may direct the company to change its name and the company shall change its name or new name, as the case may be, within a period of six months from the issue of such direction, after adopting an ordinary resolution for the purpose.

(2) Where a company changes its name or obtains a new name under sub-section (1), it shall within a period of fifteen days from the date of such change, give notice of the change to the Registrar along with the order of the Central Government, who shall carry out necessary changes in the certificate of incorporation and the memorandum.

(3) If a company makes default in complying with any direction given under sub-section (1), the company shall be punishable with fine of one thousand rupees for every day during which the default continues and every officer who is in default shall be punishable with fine which shall not be less than five thousand rupees but which may extend to one lakh rupees.

 

The provisions of Section 16 confers power to the Central Government to order company for ratification of its name is same has been allotted to it though inadvertence or otherwise which in opinion is identical or resembles with the name ;

  1. by which a company is already incorporated under the 2013 Act or any previous company Law; or
  2. of registered trade mark under the Trade Marks Act, 1999.

The Central Government give an opportunity of the company before issuing order for change in name ,where Central Government suo motu finds that due to inadvertence or otherwise a company has been incorporated with a name resembles with the name of an existing company before issuing order for change of name.

A proprietor of a registered trade mark within a period of three years from the date of incorporation of a company apply to Central Government for order to the company to change its name because its name resembles with the Trade Mark of the proprietor registered under The Trade Marks Act, 1999.

The Company within a period of six(6) months from the date of issue of order by the Central Government change its name and intimate the ROC within a period of 15 days ,so that appropriate amendments will be made in Certificate of Incorporation and other necessary documents of the ROC.

RULE 33 OF THE COMPANIES (INCORPORATION ) RULES, 2014 PROVIDES THAT

Alteration of articles.-

(1) For effecting the conversion of a private company into a public company or vice versa, the application shall be filed in Form No.INC.27 with fee.

(2) A copy of order of the competent authority approving the alteration, shall be filed with the Registrar in Form No. INC.27 with fee together with the printed copy of the altered articles within fifteen days of the receipt of the order from the Central Government.

Explanation.- For the purposes of this sub-rule, the term 'competent authority' means, the Central Government.

LET'S CONSIDER NEW RULES 33A INSERTED VIDE THE COMPANIES (INCORPORATION) FIFTH AMENDMENT RULES, 2021

33A. Allotment of a new name to the existing company under section 16(3) of the Act

(1) In case a company fails to change its name or new name, as the case may be, in accordance with the direction issued under sub-section (1) of section 16 of the Act within a period of three (3) months from the date of issue of such direction, the letters 'ORDNC' (which is an abbreviation of the words 'Order of Regional Director Not Complied'), the year of passing of the direction, the serial number and the existing Corporate Identity Number (CIN) of the company shall become the new name of the company without any further act or deed by the company, and the Registrar shall accordingly make entry of the new name in the register of companies and issue a fresh certificate of incorporation in Form No.INC 11 C:

PROVIDED THAT nothing contained in sub-rule (1) shall apply in case e-form INC-24 filed by the company is pending for disposal at the expiry of three months from the date of issue of direction by Regional Director, unless the said e-form is subsequently rejected.

(2) A company whose name has been changed under sub-rule (1) shall at once make necessary compliance with the provisions of section 12 of the Act and the statement, 'Order of Regional Director Not Complied (under section 16 of the Companies Act, 2013)' shall be mentioned in brackets below the name of company, wherever its name is printed, affixed or engraved:

PROVIDED THAT no such statement shall be required to be mentioned in case the company subsequently changes its name in accordance with the provisions of section 13 of the Act.

 

CONCLUSION

The newly inserted Rule 33A provides that in case of a company fails to complied with the order of Central Government (Regional Director ) within a period of three months to change its name or adopt new name ,then the Serial Number + CIN (Corporate Identity Number) of the company existing on the date of order will be considered as new name of the company and ROC will make amendments in its records on the basis of above new name. The above provision will not be applicable in case if application for change of name is pending.

DISCLAIMER: The article produced here is only for knowledge and information of readers. It will not be considered as professional advise of author. It is advisable to take professional advise before acting on any part of this article.

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Category Corporate Law, Other Articles by - FCS Deepak Pratap Singh 



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