Chapter 1
Incorporation and Allied Matters
Q1: What is SPICE?
A1: SPICE refers to “Simplified Proforma for Incorporating Company Electronically”. It is a simplified integrated process for incorporating a company in Form No. INC-32 along with e-Memorandum of Association in Form No. INC-33 and e-Articles of Association in FormNo. INC-34. It has been introduced by the MCA and is effective from 1 October 2016.
Q2: In case the subscriber to the memorandum is a foreign national residing outside India, his signatures and address etc. shall be witnessed by a Notary Public/Embassy/Consulate offices of Embassies as per the Rule 13 of the Companies (Incorporation) Rules, 2014. In such cases, how can the DSC of such a witness be affixed?
A2: In such cases, SPICe (INC-32) shall be filed along with the manually signed and duly attested MOA and AOA.
Q3: Whether every company is required to follow the SPICE process for incorporation of a company?
A3: As per Companies (Incorporation) Fifth Amendment Rules, 2016, all companies except Part I companies and a company having more than 7 subscribers/promoters are required to follow the SPICE process for incorporation with effect from 1 January 2017.
Q4: Can a company apply for name availability certificate by filing Form INC-1 prior to filing of SPICE form?
A4: A company can apply for name availability by filing for RUN prior to filing of SPICE Form. An approved name is valid for a period of(i) 20 days from the date of approval (in case name is being reserved for a new company) or (ii) 60 days from the date of approval (in case of change of name of an existing company).
Q5: Can a company be incorporated without a registered office?
A5: As per the Companies Act 2013, a Company shall have its registered office within 30 days of its incorporation.
Q6: In case of an overseas subscriber and director, are the documents required to be notarised and apostilled for incorporation of a company?
A6: The attestation requirements depend on the country in which registered office/reside2nce of the overseas subscriber/director is situated. The documents are required to be attested as follows:
1. Residing in a country which is part of the Common Wealth, by a notary public of that country;
2. Residing in a country which is party to the Hague Apostille Convention, 1961, attested by a notary public and duly apostilled in accordance with the said Hague Convention; and
3. Residing in a country which is not party to said Hague Convention, 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) i.e. attested by Public Notary and authenticated by Indian Embassy in the country of residence.
Q7: What is the due date to intimate the ROC for change in the situation of registered office of the company?
A7: As per Companies Act, 2013 every change in the situation of registered office of the company is required to be given to the ROC within 30 days of the change.
Q8: What is OPC?
A8: OPC means a company which has only one person as a member.
Q9: Can a non-resident become a member of an OPC?
A9: In terms of Rule 3 of the Companies (Incorporation) Rules, 2014, only a natural person who is an Indian citizen and resident in India is eligible to incorporate an OPC. Therefore, a non-resident cannot become a member or nominee of an OPC. 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 Incorporation and Allied Matters hundred and eighty two days during the immediately preceding one calendar year.
Q10: How many OPCs can be incorporated by a person or in how many OPCs, he shall be eligible to be a nominee?
A10: A natural person shall not be member of more than an OPC at any point of time and the said person shall not be a nominee of more than an OPC.
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