Introduction of SPICE for e- MOA and AOA: Incorporation of a Company further simplified

The Ministry of Corporate Affairs (“MCA”), took a valiant and a versatile step towards Government Process Reengineering (“GPR”) by launching a simplified proforma for incorporating a Company electronically (SPICe- form INC-32)[1]as a part of  the Companies (Incorporation) Fourth Amendment Rules, 2016on 1st October 2016.[2]By introduction of SPICe, MCA seeks to achieve a speedy incorporation service within specified time frames which are in line with international best practices.[3] This is a great move by the Government towards digitalization and streamlining registration procedures. E-forms for incorporation has undergone many changes in the past few years. One of the important changes brought by MCA previously in 2015 was the introduction of e- form INC 29 for incorporation.[4] INC-29 shall be replaced by INC 32. The major advantage of INC 32 over INC 29 is the introduction of electronic filing of Memorandum of Association(e- Form INC 33) and Articles of Association(e-Form INC34) (except for not-for-profit entities). Another advantage is that SPICe Form INC-32 has provision for entering name approval that was already obtained by the applicant[5]; therefore there are no chances for resubmission or rejection of the application.

A.    Companies that can be incorporated using INC 32 Form

  1. Part I Company- Companies Authorized to register under the Companies Act, 2013
  2. Producer Company
  3. Section 8 Company- Companies with Charitable Objects (previously were not able to register under INC-29)
  4. Public Company, Private Company or One Person Company

B.     Objectives of INC-32 e-form

  1. It provides a single application for reservation of company name, incorporation of a new company and application for allotment of DIN.
  2. It provides for Standard format of e-Memorandum of Association and e- Articles of Association as per Companies Act, 2013. Only the applicable clauses can be chosen and one can also choose the clauses which are not applicable or needs alteration. Therefore not only the filing of MOA and AOAs but also the task of drafting both memorandum and articles of association has become much easie,r saving a lot of time and effort.
  3. It seeks to secure Back Office productivity via faster review of e-MOA and e-AOA by approving authorities.

C.     Key Highlights

  • Maximum 3 directors are allowed for using this form for application for allotment of DIN.
  • It provides option for already approved name of company by the Registrar of Companies.
  • It provides for Compulsory Digital signature certificates for subscribers and witnesses in Memorandum of Association (MOA) and Articles of Association (AOA).
  • Existing INC 29 and INC 7 (forms) will be phased-out and SPICe will be the sole, simplified & versatile form available for incorporation of a company in India, it added.
  • It provides for Acquiring Company’s PAN, TAN and ESIC registration in a single step by using Form INC-32.
  • Minimum authorized and subscribed share capital required for an OPC is Rupee one; for a private company having share capital is Rupees two and; for public company is Rupees seven.
  • It also facilitates conversion of company limited by guarantee to company limited by shares vide Form INC 11-B.[6]

D.    Procedure For Filing SPICe Form INC-32

Form INC is to be submitted along with the supporting documents which shall include details of Directors and subscribers, affidavits, declarations, address and identity proofs, MOA and AOA etc. The filed e-Form shall be processed by the MCA’s Central Processing Centre. Once processed, company shall be registered and CIN would be allocated along with DIN to the Directors. A limit of maximum three directors have been fixed for using this integrated form for filing application of allotment of DIN while incorporating a company.

E.     Important Attachments

  1. Memorandum of Association
  2. Articles of Association
  3. Declaration and affidavit by first subscribers and directors.
  4. Proof of Office address which can be made via Conveyance/ Lease deed/ Rent Agreement etc. along with rent receipts
  5. NOC from the Sole proprietor, partners, other associates etc.
  6. Trademark Registration certificate or trademark application copy.

F.      Drawbacks Of INC-32

  • Maximum details of subscribers which are allowed via SPICe  INC-32 is 7. In case of more subscribers, one has to follow the normal incorporation procedure that involves INC-7, DIR-12 & INC-22.
  • Director up to maximum number of 3 are allowed for using this integrated form for filing application of allotment of DIN.
  • One can propose only one name for the Company. It is advisable to fill the Form INC-1 first in case more than one name is required.
  • The cost of Digital Certificate Signature will add on to the expenses as it is required for all subscribers and witnesses.
  • Use of digital documents will surely ensure a swift process, however in-person verification for ‘user clarification’ may become a cause for delay.

G.    Conclusion

The time for Indian Companies is the most appropriate to improve their e-readiness index. Introduction of INC-32 is a stride to help country achieve its digitalization goals as enshrined in the National E- Governance Plans. It is a big step towards the E- governance imitative MCA-21 launched by MCA. This shift from the use of conventional forms to electronic forms will bring more efficiency and transparency in Corporate Governance.

[1] Came into force via addition of Rule 38 of Companies (Incorporation) Fourth Amendment Rules, 2016

The Form is available here:http://www.mca.gov.in/MinistryV2/companyformsdownload.html

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

[3] MCA SPICe Press Release Note http://www.mca.gov.in/Ministry/pdf/SPICEPress%20Release_03102016.pdf

[4]INC-29 dealt with the single application for reservation of name, incorporation of a new company and/or application for allotment of DIN.

[5]Point No. 5(a)(i) of INC-32 Form.

[6] Rule 39 for Conversion of a company limited by guarantee into a company limited by shares is inserted which shall be effective from 1st November, 2016.

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About Niharika Choudhary

Niharika Choudhary

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