Process of incorporation of company

Ministry of Corporate Affairs ('MCA') has came with new rules for Incorporation of Company under Companies Act, 2013 with simplified procedure (SPICe).

An significant step is taken by Ministry of Corporate Affairs by introduce e-form INC-32 under SPICe scheme vide MCA's notification dated 01/10/2016 notifying Companies (Incorporation) Fourth Amendment Rules, 2016. SPICE means Simplified Performa for Incorporating Company Electronically.

The SPICE form was introduced with a function to prepare e-Moa & e-Aoa (Electronic MOA/ AOA). This facility is first time providing by the Ministry in the history of India for Incorporation of Company via this attribute there is no opportunity to prepare the manual MOA & AOA and no option to physically sign the MOA & AOA by subscribers and witness

Simplified Performa for incorporation of Companies Electronically (SPICE )

[1] New Rule No. 38 has been inserted by Company (Incorporation) Fourth Amendment Rules, 2016 w.e.f. 02.10.2016.

[2] Ministry has come with amendment in Rule 38 Companies (Incorporation) Fifth Amendment Rules, 2016 dated 29th December, 2016.

Single Window Form:

Earlier if a Person wants to incorporate Company then it has to apply for the DIN, Approval of the Name Avaibility, Separate form for first Director, Registered office address, PAN, TAN etc. But this form is a single window for Incorporation of Company.

This form can be used for the following purposes:

Application of DIN (upto 3 Directors)
Application for Availability of Name
No need to file separate form for first Director (DIR-12)
No need to file separate form for address of registered office (INC-22)
[3]No need to file separate form for PAN & TAN

Mandatory to file e-Form inc-32–

This form available on MCA w.e.f. 03.10.2016.Ministry has moved toward with notification dated 29thDecember, 2016 by this notification Companies can be incorporated only by following forms:

i. One Person Company = INC-32 (SPICe )
ii. Private Limited Company (with7 or less than 7 subscribers) = INC-32 (SPICe )
iii. Public Limited Company (with7 or less than 7 subscribers) = INC-32 (SPICe )
iv. Section 8 Company(with7 or less than 7 subscribers) = INC-32 (SPICe )
v. Producer Company (with7 or less than 7 subscribers) = INC-32 (SPICe )
vi. Producer Company (with more than 7 subscribers) = INC-7
vii. Company with foreign Subscribers (up to 7) = INC-32 (SPICe )

*According to the above notification, the Companies which are requisite to be incorporated through INC-32 can't be incorporated by filing e-form INC-7 on or after 29th December 2016. Hence, it is obligatory to file e-form INC-32 (SPICe ) for Incorporation of Company w.e.f. 29th December 2017.

Features of SPICe (inc-32) form:

a. Maximum details of [4]subscribers are SEVEN (7). In case of more subscribers, follow the normal incorporation procedure in INC-7.

b. Maximum details of directors are TWENTY (20).

c. Maximum THREE (3) directors are allowed for filing application of allotment of DIN while incorporating a Company.

d. Person can apply the Name also in this form.

e. By affixation of DSC of the subscriber on the INC-33 (e-moa) date of signing will be appear automatically by the form.

f. Applying for PAN / TAN will be compulsory for all fresh incorporation applications filed in the new version of the SPICe form.

Confusion in SPICe (inc-32) form:

a. How to apply for Incorporation of Company with Foreign Subscribers, without violating the Rule 13 of the Companies (Incorporation) Rules, 2014.

b. If Name of a Company is already approved by INC-1 then whether company can apply for incorporation in e-form INC-32.

c. If both the person doesn't have DIN No. whether they can apply for the incorporation of Company. Or one person mandatorily requires having DIN for filing of this form.

d. Whether producer company can be incorporated through this form or not.

e. If a person want to incorporate through INC-7 whether they can do or no.

In this article, I will share the comparison of Incorporation through SPICe Form in cut short. In my next article I will take up the entire question mentioned above along with some other questions:

Particular	Simplified Process of Incorporation of Company	Normal Incorporation Process
Purposes	5-in-1 form	N. A.
No. of Form Filing	1 (ONE)	5 (FIVE)
Steps of Incorporation	Single Step of Incorporation	Three Step Incorporation
Form Filing Requirement	Only one Form INC-32.	DIR-3- Application for DIN (3 DIN) INC-1 – Application for Name Approval INC-7 – Incorporation of Company DIR-12 – Appointment of First Directors INC-22 – Situation of Registered Office
MOA & AOA	Electronic e-MOA (INC-33) & e-AOA (INC-34) required filing in this case.	Only scan copy of MOA & AOA can be attach in this form.
Digital Signature	DSC of every subscriber required Mandatory. The subscribers and witness or witnesses shall affix their digital signatures to the e-MOA and e-AOA	DIN of both Subscribers Required.
Din Allotment	Maximum 3 Person can apply DIN through this process.	Separate DIR-3 will be file for each person.
Narrower Name Proposal	Person can give only One Name for Approval or can be file after INC-1	Person has option to give alternate SIX Names.
Name Keeping	While applying name applicant has to undertake necessary diligence regarding the name keeping, considering the guidelines issued by MCA for Name approval. Drawback: Be sure for the proposed name, only one name can be given.	Person has option to give maximum SIX names. Therefore, comparatively less diligence requires.
Time frame	Their approval of DIN, Name and Incorporation will be all together. Generally, it will take 1-2 days.	First DIN form will approve generally it takes 1 day. Second Name will Approve, generally, it takes 7-10 days. Third Incorporation will Approve, generally, it takes 7- 10 days. Generally, Incorporation of Company takes 20-25 days. Apply for DIN in DIR 3: It is a STP form DIN is generated in e-form Challan. INC 1 takes 7-10 days for approval, maximum re-submission cases are there. INC 7 takes 10-15 days for approval. DIR 12 takes 1-2 days to get approved. INC 22 gets approved in 2-3 days. In total 21-30 days.
Attachment of ID Proof	In case of Director/Shareholders have DIN, then no need to attach separate Address Proof/ ID Proof.	In case of Director/Shareholders have DIN, then no need to attach separate Address Proof/ ID Proof.
Professional Certification	INC-32 requires Professional Certification. No Need to Attach INC-8 in this Form	No need of professional Certification in e-form INC-7. Need to Attach INC-8 in this Form.
Resubmission	Two resubmission are allowed	Only one resubmission is allowed.
Refund Of Money	In a case of rejection of form, the company can apply for the refund of money by refund form.	No refund allowed.
PAN & TAN	PAN & TAN applications mandatory to file and upload on MCA website.	No facility to obtain PAN & TAN through this form.
Certificate of Incorporation	COI shall mention the PAN of the Company	PAN will not mention on the COI.

Attachment in SPICe -e (inc-32) form:

e-MOA & e-AOA required t be filed as linked form.
INC-9 Affidavit and declaration by the first subscriber(s) and director(s) (on duly authorised Stamp Papers).
DIR-2 declaration from first Directors along with Copy of Proof of Identity and residential address.
NOC from the owner of the property.
Proof of Office address (Conveyance/ Lease deed/ Rent Agreement etc. along with rent receipts);
Copy of the utility bills (not older than two months)
Declaration from the director non-acceptance of Deposit. (on duly authorized Stamp Papers).
In case of subscribers/ Director does not have a DIN, it is mandatory to attach: Proof of identity and residential address of the subscribers
E-49A and 49B will be file on MCA website (filed form will be generated by the SRN of INC-33)

Note:

a. Director has to give declaration at the end of the form that he has checked the name on MCA website and Trade Mark Website.

b. DSC of Director will be affixed on the form. {In case of director don't have DIN then mention PAN No. of director at the place of affixing of DSC)

c. DSC of professional will also affix on the form.

d. Only one name can be applied for approval in this e-form. Therefore, one is advised to duly check the proposed name and follow name availability guidelines, existing trademarks to avoid rejection.

e. MCA21 system will auto generate the pre-filled application forms 49A (PAN) and 49B (TAN) after submission of SPICe, which the stakeholders will be required to download, affix digital signature and then upload both signed forms on MCA21 system as linked forms.

f. New version of SPICe incorporation applications will be processed only after Forms 49A & 49B are duly signed, uploaded and payment is confirmed by MCA

g. PAN (as allotted by Income Tax Deptt) will be printed in the Certification of Incorporation, and TAN will be separately communicated to the stakeholders by email

h. New version of SPICe form for all fresh incorporation applications w.e.f 01 Feb 2017

[1] http://www.mca.gov.in/Ministry/pdf/CompaniesIncorporationFourthAmendmentRules_01102016.pdf

[2] http://www.mca.gov.in/Ministry/pdf/5th_Amendment_Rules_29122016.pdf

[3] MCA21 system will auto generate the pre-filled application forms 49A (PAN) and 49B (TAN) after submission of SPICe, which the stakeholders will be required to download, affix digital signature and then upload both signed forms on MCA21 system as linked forms.

[4] Including both Indian and foreign subscribers.