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Analysis | Simplified proforma for incorporating company electronically (SPICE)

Shivam Bhatia 
Updated on 02 May 2021

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E-Form SPICe (INC-32) deals with the single application for Reservation of name, Incorporation of a new company and/or Application for allotment of DIN.

The Ministry of Corporate Affairs (“MCA”), on October 1st, 2016, has, vide Companies (Incorporation) fourth Amendment Rules, 2016 brought quite a number of changes in the incorporation provisions. The changes have been made in line with the Digital India campaign of Prime Minister Narendra Modi. Thus an attempt has been made to digitally empowered incorporation process by virtue of reduction in paper work.

The amendment main focus is on e Sign framework of Digital India campaign which enables the subscriber(s) and witness to digitally sign a document using Digital Signature Certificate.

The said notification will be effective from the date of its publication in official gazette.

This article endeavors to outline the changes made in pursuance to Companies (Incorporation) fourth Amendment Rules, 2016:

SPICE is by and large similar to the integrated incorporation process with the facility of filling and filling the Memorandum and Articles of the proposed company electronically and the provisions of Integrated Incorporation as provided in sub-rule (2) to sub-rule (13) of rule 36 of Companies (Incorporation) Amendment Rules, 2015 shall apply mutatis mutandis for incorporation under SPICE.

Three new e-Forms have been designed for the purpose of this rule:

  • e-Form INC-32: Simplified Proforma for Incorporating Company Electronically (SPICe)
  • e-Form INC-33: e-Memorandum of Association (SPICe MoA)
  • e-Form INC-34: e-Articles of Association (SPICe AoA)

KEY HIGHLIGHTS IN INC-32, INC-33 & INC-34:

EFORM SPICE MOA INC-32

  1. Section-8 company can incorporated by INC-32, however the same is not possible in INC-29
  2. INC-32 can be filled even after approval of INC-1.

Now, INC-32 can be filled even after approval of INC-1.In such case, enter the particulars of the proposed name in INC-32, INC-33 and INC-34 and the same gets pre-filled based on the SRN entered.

This facility was not provided in INC-29

Total number of first subscribers are restricted to seven considering possibility of affixing maximum DSCs in form SPICe MOA (INC-33) and form SPICe AOA (INC-34).

In case of more subscribers, follow the normal incorporation procedure.

1. Minimum authorized and subscribed share capital required for an OPC is Rupee one or a private company having share capital is Rupees two and in case of a public company Rupees seven.

2. Aadhaar number (of individual or authorized person) is mandatory in Form INC-32, where personal identification document selected is PAN in case of :

  • Non-individual first subscriber(s)
  • Individual first subscriber(s) (other than subscriber cum director) Not Having DIN
  • Individual first subscriber(s) cum directors Not Having DIN
  • Directors (other than first subscribers) Not Having DIN.

EFORM SPICE MOA INC-33

1. Memorandum of Association (MOA) has been provided in Electronic mode in e-Form SPICe MOA INC-33. Thus now onwards the details had to be filled in the form itself until now it can be printed and typewritten.

2. No need of signatures of subscriber, instead of sign of subscribers, Digital Signature Certificate of subscribers can be affix on MOA

3. No need of signatures of witness, instead of sign of witness, Digital Signature Certificate of witness can be affix on MOA

Note: The e-Forms INC-33 are so designed that only a CA, CS, CMA having a valid DSC can become witness to the subscribers.

  • No need to scan the photograph of every subscriber with MOA
  • Total number of first subscribers are restricted to seven

EFORM SPICE AOA INC-34

  • Article of Association (AOA) has been provided in Electronic mode in e-Form SPICe AOA INC-34. Thus now onwards the details had to be filled in the form itself until now it can be printed and typewritten.
  • No need of signatures of subscriber, instead of sign of subscribers, Digital Signature Certificate of subscribers can be affix on AOA
  • No need of signatures of witness, instead of sign of witness, Digital Signature Certificate of witness can be affix on AOA

Note: The e-Forms INC- 34 are so designed that only a CA, CS, CMA having a valid DSC  can become witness to the subscribers.

  • No need to scan the photograph of every subscriber with AOA.
  • Applicable standard articles will be auto populated based on selection of Table notified under Schedule I to the Companies Act, 2013.However, the facility has been provided to entrench the same by way of alteration of  the respective article in the form.

INCREASE IN INFORMATION REQUIREMENT/OTHER FORMALITIES

  • Under INC-32, information requirement has increased such as Details of number of members.
  • Digital Signature Certificate of subscriber(s) and witness has been made mandatory in e-Form SPICe MOA INC-33 and e-Form SPICe AOA INC-34.

The procedure is still optional, old procedure can be followed for one’s convenience, if at all.

Companies registered using Form INC-32:

The following types of companies can be registered using Form INC-32:

  • Private Limited Company
  • One Person Company
  • Public Limited Company
  • Producer Company
  • Section 8 Company

Note: In case proposed company is section 8 company, then license issued against the SRN of form INC-1 will be pre-filled. Thus section-8 company can incorporated by INC-32, however the same is not possible in INC-29

STEPS FOR INCORPORATION OF COMPANY THROUGH INC-32

1. Obtain DSC for one director to file Form INC-32. Class 2 Digital Signature will be required for filing Form INC-32.

2. Obtain DSC for all subscriber(s) and witness to file Form INC-33 and INC-34.

3. Prepare and file the Form INC-32, Memorandum of Association (e-Form SPICe MOA INC-33 )and Articles of Association (e-Form SPICe AOA INC-34)for following:

  1. reservation of name
  2. incorporation of a new company
  3. application for allotment of DIN
  4. Application for PAN & TAN

Attach following documents in Form INC-32

i) Memorandum of Association - Applicable and mandatory only in case of Section 8 company or company with foreign subscribers not having DIN.

Note: Memorandum of Association is to be attached in INC-32 only in case of Section 8 company or company with foreign subscribers not having DIN.

ii) Articles of Association - Applicable and mandatory only in case of Section 8 company or company with foreign subscribers not having DIN

Note: Memorandum of Association is to be attached in INC-32 only in case of Section 8 company or company with foreign subscribers not having DIN.

  • Affidavit and declaration by first subscriber(s) and director(s)
  • If the address for correspondence is the address of registered office of the company, then following attachments are mandatory:

a) Proof of office address (Rental Agreement / Sale Deed).
b) Copies of utility bills that are not older than two months.
c) Copy of approval in case the proposed name contains any word(s) or expression(s) which requires approval from central government, if proposed name require approval of Central government.

  • Affidavit or Declaration in respect of acceptance of deposits.
  • Approval of the owner of the trademark or the applicant of such trademark for registration of Trademark, if the proposed name is based on a registered trademark or is subject matter of an application pending for registration under the Trade Marks Act.
  • NOC from the sole proprietor/ partner/other associates/existing company, if the promoters are carrying on any Partnership firm, sole proprietary or unregistered entity in the name as applied for.
  • In principle approval from the concerned regulator, if proposed name requires approval from any sectoral regulator(if already received)
  • Copy of certificate of incorporation of the foreign body corporate and resolution passed, if any subscriber to the proposed company is Foreign company and/or company incorporated outside India.
  • Resolution passed by Promoter Company, if any subscriber to the proposed company is a Company itself.
  • A certified true copy of No objection certificate by way of board resolution / resolution, in case the name is similar to any existing company.
  • Interest of first director(s) in other entities, in case any of the director has any interest in the proposed company.
  • Consent of nominee and Proof of identity and residential address of the nominee, in case of an OPC.

Subscriber’s Proof of Identity and Residential address

Proof of identity

a) Indian Nationals (two documents)
i) PAN Card(Mandatory)
ii) Any of the following:

-Voters Identity Card
- Passport
- Driving License
- Aadhaar Card

b. Foreign Nationals and NRIs(one document)

- Only Passport Copy AND
- Residential address

A copy of Bank statement, Electricity Bill, Telephone bill, Mobile bill of not more than 2 months old, if any one of the subscriber does not have a DIN.

However if a subscriber holds a valid DIN with updated particulars no need to file Proof of Identity and Residential address. Such subscribers now simply need to attach a declaration to the affect that the particulars of the DIN are updated.

In case of PAN & TAN, fill jurisdiction details.

Director’s Proof of Identity and Residential address

Proof of identity

a) Indian Nationals (two documents)
i) PAN Card (Mandatory)
ii) Any of the following:

- Voters Identity Card
- Passport
- Driving License
- Aadhaar Card

b) Foreign Nationals and NRIs(one document)

- Only Passport Copy AND
- Residential address

A copy of Bank statement, Electricity Bill, Telephone bill, Mobile bill of not more than 2 months old, if any of the director (including subscriber cum director) does not have DIN.

However if a director holds a valid DIN then no need to file Proof of Identity and Residential address.

i. NOC in case there is change in the promoters (first subscribers to Memorandum of Association), if SRN of INC-1 is mentioned in the form and any of the person mentioned in INC-1 as promoter is not subscribing to MOA

ii. Declaration and certification by Professional to be digitally signed along with their membership number and certificate number of the practicing professional.

NOTE:      

a. This is recommended to name the attachments with proper name. For e.g. If PAN is attached as proof of identity then recommended name of the attachment is “PAN – Proof of Identity”. This should be followed while attaching any attachment.

b. A separate declaration in format of INC-8 is not required to be attached.

Disclaimer: This write up is based on the understanding and interpretation of author and the same is not intended to be a professional advice.


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