The legislation with regards to companies in India has seen a massive overhaul post the Companies Act, 2013. The demarcation of companies have been increased and new forms of companies such as One Person Company, Dormant Company, etc have been given recognition in this legislation. This article shall deal with incorporation of a private company in India considering the changes brought about as per the new act. Relevant filings for the company have to be done with the Registrar of Companies (RoC).
In simple terms a private company may be defined as a type of company incorporated under the act which has a minimum of two members and a maximum of two hundred members. The company may have promoters who may be individuals or body incorporates. It should have at least two Directors who should definitely be individuals as per Section 149(5) of the new act. Foreign residents may be directors as along as one of them as stayed in India for preceding 182 days. A private company however, cannot invite the public to subscribe its shares. The directors of the company shall have to fill DIN-3 in order to receive Director Identification Number. The number so given is unique. After this, they shall have to obtain a DSC that is a Digital Signature Certificate from any of the vendors such as TCS, Sify, E-mudra, etc. The DSC and DIN shall have to be affixed alongwith every filing done. The documents which are required for both of these include an affidavit along with the stamp duty which differs from state to state, address proof which may be election card or Aadhar Card or Driving License or any bill such as telephone bill, electricity bill, etc (not older than two months), PAN, TAN in the event of TDS. All of these shall be self attested and is recommended if certified by a professional such as CS or ICWA or CA. In the event the Director is resident outside India, the same shall have to be notarised by the Indian Embassy, foreign public notary.
Finding a unique name for a company is sine qua non. There are many permutations and combinations involved in this. The MCA website is to be searched in order to ascertain the availability of names. A check should also be made on the Trademark Registry's website. The list of undesirable names have been mentioned under Companies (Incorporation) Rules, 2014. The name cannot be contrary to the Emblems and Names (Prevention of Improper Use) Act. Also if words such as 'Exchange', 'Bank', etc are to be used then Circular 2/2014 of the MCA has to be referred. After making such a search, filing of INC-1 is to made along with the main object of the company. Six choices have to be given here. In the event, all of them are rejected by the registrar, new filing may be done twice without payment of additional fees. As per Section 4(5) of the act, the Registrar, if he may so permit may allow the name which shall be valid for a period of two months.
The Memorandum of Association and the Articles of Association are to be drafted after this. All details with respect to subcribers have to be fulfilled. After this INC-7 is to be filled by the company for its incorporation alongside its MoA and AoA, a declaration, an affidavit, an affidavit from subscriber in form INC-9, INC-10 that is the verification of signatures. INC-22 is to be filed in the event the registration office is changed along with the agreement and a No Objection Certificate from the landlord. DIR-12 is to filed which gives information about the Key Managerial Personnel (KMP) of the company. documents such as Letter of Appointment, decleration of appointee director in DIR-1 have to be filed. Adequate fee is to paid as per the Fee Schedule.
The Registrar may suggest changes and the same have to be made. After this, if all documentation is in place, the Registrar issues a 'Certificate of Incorporation' which validates the existence of the company.
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