REGISTRATION AS COMPANY

UNDER SECTION 8 OF THE COMPANIES ACT, 2013

Associations established for promoting commerce, art, science, religion, charity or any other useful object can also be registered as limited company under section 8 of the Companies Act, 2013. The Companies Act, 2013 is a central statute applicable to whole of India. Unlike the Societies Registration Act, the State Government do not have the power to frame any supplementary legislation to regulate the companies. Therefore, the regulatory authority law and procedure are uniform throughout India.

The Central Government is empowered under the provisions of Companies Act to grant licence to associations/companies which to its satisfaction:

Intend to promote commerce, art, science, sports, education, research, social welfare, religion, charity protection of environment or any such other object,
Intend to apply its profits, if any, or other income for promoting its objects, and
Intend to prohibit the payment of any dividend to its members.

Such associations which are granted licence under section 8 are allow that person or associations of persons to be registered as a limited company under this section without the addition to its name of the word “Limited”, or as the case may be, the words “Private Limited”, and thereupon the registrar shall, on application, in the prescribed form, register such person or association of persons as a company under this section.

STEPS TO REGISTER A COMPANY

Step 1. Obtain Digital Signatures

Nowadays various document prescribed under the Companies Act, 2013, are required to be filed with the digital signature of the Managing Director or Director or Manager or Secretary of the Company, therefore, it is essential to Obtain a Class II Digital Signature Certificate from authorized DSC issuing Company for at least one director to sign the E-forms related to incorporate like form INC.1 and other documents.

Step 2. Obtain Director Identification Number

As per section 153 of the Companies Act, 2013, every individual intending to be appointed as director of a company shall make an application for allotment of Director Identification Number in form DIR.3 to the Central Government in such form and manner and along with such fees as may be prescribed. Therefore, before submission of e-Form INC.1 for availability of name, all the directors of the proposed company must ensure that they are having DIN and if they are not having DIN, it should be first obtained.

Step 3. Name availability for proposed company

As per section 4(4) read with Rule-9 of Companies (Incorporation) Rules, 2014, application for the reservation/availability of name shall be in Form no. INC.1 along with prescribed fee of Rs. 1,000/-. In selection of Company name should be in accordance with name guidelines given in Rule-8 of Companies (Incorporation) Rules, 2014.

Step 4. Name availability for proposed company

The name will be valid for a period of 60 Days from the date on which the application for Reservation was made.After approval of name ROC will issue a Name availability letter w.r.t. approval for availability of name for a proposed company. Note: MCA has prescribed certain rules for name availability so it is advisable to check guidelines for the same before applying for name. Refer Rule-8 of Companies (Incorporation) Rules, 2014.

Step 5. Preparation of the Memorandum of Association (MOA) and Articles of Association (AOA)

Drafting of the MOA and AOA is generally a step subsequent to the availability of name made by the Registrar. It should be noted that the main objects should match with the objects shown in e-Form INC.1. The memorandum of association of the proposed company shall be in Form No.INC.13.

Step 6. License under section 8 for new companies with charitable objects

A person or an association of persons desirous of incorporating a company with limited liability under sub-section (1) of section 8 without the addition to its name of the word “Limited”, or as the case may be, the words “Private Limited”, shall make an application in Form No.INC.12,along with the prescribed fee, to the Registrar for a license under sub-section (1) of section 8.

Step 7. Main attachments of Form INC.12 would be as follows:

(a) The draft Memorandum of Association as per form no. INC.13 of the proposed company.
(b) The draft Articles of Association of the proposed company.
(c) The declaration in Form No.INC.14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that the draft memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with;
(d) The declaration by each of the persons making the application in Form No. INC.15.
(e) An estimate of the future annual income and expenditure of the company for next three years, specifying the sources of the income and the objects of the expenditure;

Step 8. Presently Form No INC 12 is filed as an attachment to Form No – RD 1 alongwith the other documents

After all the papers for obtaining license are filed and reviewed by the RoC, the RoC may require certain clarifications before issuance of license under Section 8 of the Companies Act, 2013. These clarifications or enquiry need to be satisfied by the person who has been authorised to do so by the Power of Attorney filed with the RoC or by the applicant. Once all clarifications are provided, the License under Section 8 is issued by the RoC and then applicant can file incorporation documents in below mentioned eForms:

(i) eForm INC 7 (declaration of compliance with the requirements of the Act on application for registration of a company);
(ii) eForm INC 22 (notice of situation of registered office);
(iii) eForm DIR 12 (appointment of directors of the company); and
(iv) a Power of Attorney to be executed by subscribers and proposed directors (authorisation by the promoters of the company to a person/s to carry out appropriate changes as suggested by the RoC in any of the incorporation papers that have been filed)

Step 9. Duty of registrar to scrutinise the documents

If after filling the Requisite forms for incorporation with the Registrar of Companies along with fees, ROC is satisfied with the contents of the documents filed, ROC will issue the licence in form No. INC.16 under section 8(1) read with rule 19 of Companies (Incorporation) Rules, 2014.

Step 10. Certificate of Incorporation

Once all clarifications are provided, the Certificate of Incorporation is issued by the RoC and the company is deemed to be incorporated from the date of the Certificate of Incorporation.