Jul 29, 2017

MCA amends the Companies (Incorporation) Rules, 2014

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MCA vide Notification dated July 27, 2017 has amended the Companies (Incorporation) Rules, 2014, namely:-

S. No. Rule No. Amendment & Impact
1. Rule 28- Shifting of registered office within the same State from the jurisdiction one Registrar of Companies to another Registrar of Companies.
  • Earlier this amendment, at least 1 month before filing any application with RD, the company shall: –
    • publish a notice for the change of registered office, at least once in a daily newspaper published in English and in the principal language of that district in which the registered office of the company is situated and circulating in that district; and
    • serve individual notice on each debenture holder, depositor and creditor of the company, clearly  indicating the matter of application and stating that any person whose interest is likely to be affected by the  proposed alteration of MOA may intimate his nature of interest and grounds of opposition to RD with a copy to the company.

    (Now, company is not required to comply with this provision).

  • Earlier this amendment, shifting of registered office was not allowed if any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the company under the Companies Act, 2013.
  • (Now, company can shift its registered office in case of any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the company under the Companies Act, 2013).

  • An application seeking confirmation from RD for shifting the registered office within the same state from the jurisdiction of one ROC to the jurisdiction of another ROC, shall be filed by the company with RD in Form INC-23 along with the fee and follo0wing documents:-
    1. Board Resolution for shifting of registered office;
    2. Special Resolution of the members of the company approving the shifting of registered office;
    3. a declaration given by KMP or any 2 directors authorised by the Board, that the company has not defaulted in payment dues to its workmen and has either the consent of its creditors for the proposed shifting or has made necessary provision for the payment thereof;
    4. a declaration not to seek change in the jurisdiction of the Court where cases for prosecution are pending; and
    5. acknowledged copy of intimation to the Chief Secretary of the State as to the proposed shifting and that the employees interest is not adversely affected consequent to proposed shifting.

    (Before this amendment, documents were not prescribed for the application seeking confirmation from RD).

2. Rule 30- Shifting of Registered Office from one State or Union Territory to another State.
  • After this amendment, the following documents are not required to attach with the application, namely:-
    • a copy of the articles of association;
    • a copy of the special resolution sanctioning the alteration by the members of the company;
    • an affidavit verifying the application;
    • the document relating to payment of application fee; and
    • a copy of NOC from RBI, where the applicant is a registered NBFC.
  • The company shall within 30 days before filing the application  (earlier it was 14 days  before the date of hearing):-
    • Advertise in Form INC-26 in the vernacular newspaper in the principal vernacular language in the district and in English language in an English newspaper with the widest circulation in the state in which the registered office of the company is situated.
    • A copy of advertisement shall be served on the Central Government immediately on its publication (earlier it was not required).

    • serve, by registered post with acknowledgement due, individual notice, to each debenture-holder and creditor of the company.
    • serve, by registered post with acknowledgement due, a notice together with the copy of the application to ROC and to SEBI, in case company is listed and  to the regulatory body, if the company is regulated under any special Act or law for the time being in force.
  • Where no objection has been received from any person in response to the advertisement or notice, the application may be put up for orders without hearing and the order either approving or rejecting the application shall be passed within 15 days of the receipt of the application (earlier 15 days time limit was not prescribed).
  • Where an objection has been received,
    1. the Central Government shall hold a hearing or hearings, as required and direct the company to file an affidavit to record the consensus reached at the hearing, upon executjng which, the Central Government shall pass an order approving the shifting, within sixty days of filing the application.
    2. where no consensus is reached at the hearings the company shall file an affidavit specifying the manner in which objection is to be resolved within a definite time frame, duly reserving the original jurisdiction to the objector for pursuing its legal remedies, even after the registered office is shifted, upon execution of which the Central Government shall pass an order confirming or rejecting the alteration within sixty days of the filing of application.

    (Earlier this consequences and conditions were not given).

Click here to download the amended rules

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