Section 7 of Companies Act, 2013 – Incorporation of Company

SECTION 7. INCORPORATION OF COMPANY

[Effective from 1st April, 2014 , sub-section (7) except clause (c) & (d) effective from 1st June, 2016, clause (c) & (d) of sub-section (7) effective from 15th December, 2016 ]

(1) There shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be situated, the following documents and information for registration, namely:—

(a) the memorandum and articles of the company duly signed by all the subscribers to the memorandum in such manner as may be prescribed;

(b) a declaration in the prescribed form by an advocate, a chartered accountant, cost accountant or company secretary in practice, who is engaged in the formation of the company, and by a person named in the articles as a director, manager or secretary of the company, that all the requirements of this Act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with;

(c) [19] [declaration]  from each of the subscribers to the memorandum and from persons named as the first directors, if any, in the articles that he is not convicted of any offence in connection with the promotion, formation or management of any company, or that he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief;

(d) the address for correspondence till its registered office is established;

(e) the particulars of name, including surname or family name, residential address, nationality and such other particulars of every subscriber to the memorandum along with proof of identity, as may be prescribed, and in the case of a subscriber being a body corporate, such particulars as may be prescribed;

(f) the particulars of the persons mentioned in the articles as the first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed; and

(g) the particulars of the interests of the persons mentioned in the articles as the first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form and manner as may be prescribed.

(2) The Registrar on the basis of documents and information filed under sub-section (1) shall register all the documents and information referred to in that sub-section in the register and issue a certificate of incorporation in the prescribed form to the effect that the proposed company is incorporated under this Act.

(3) On and from the date mentioned in the certificate of incorporation issued under sub-section (2), the Registrar shall allot to the company a corporate identity number, which shall be a distinct identity for the company and which shall also be included in the certificate.

(4) The company shall maintain and preserve at its registered office copies of all documents and information as originally filed under sub-section (1) till its dissolution under this Act.

(5) If any person furnishes any false or incorrect particulars of any information or suppresses any material information, of which he is aware in any of the documents filed with the Registrar in relation to the registration of a company, he shall be liable for action under section 447.

(6) Without prejudice to the provisions of sub-section (5) where, at any time after the incorporation of a company, it is proved that the company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company, or by any fraudulent action, the promoters, the persons named as the first directors of the company and the persons making declaration under clause (b) of sub-section (1) shall each be liable for action under section 447.

(7) Without prejudice to the provisions of sub-section (6), where a company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company or by any fraudulent action, the Tribunal may, on an application made to it, on being satisfied that the situation so warrants,—

(a) pass such orders, as it may think fit, for regulation of the management of the company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or

(b) direct that liability of the members shall be unlimited; or

(c) direct removal of the name of the company from the register of companies; or

(d) pass an order for the winding up of the company; or

(e) pass such other orders as it may deem fit:

Provided that before making any order under this sub-section,—

(i) the company shall be given a reasonable opportunity of being heard in the matter; and

(ii) the Tribunal shall take into consideration the transactions entered into by the company, including the obligations, if any, contracted or payment of any liability.

Applicable Rules

Companies (Incorporation) Rules, 2014

[Effective from 1st April, 2014]

[23] [Rule 9. Reservation of name or change of name.- An application for reservation of name shall be made through the web service available at www.mca.gov.in by using web service SPICe+ (Simplified Proforma for Incorporating company Electronically Plus: INC-32), and for change of name by using web service RUN (Reserve Unique Name) along with fee as provided in the companies (Registration Offices and Fees) Rules, 2014, which may either be approved or rejected, as the case may be, by the Registrar, Central Registration Centre after allowing resubmission of such web form within fifteen days for rectification of the defects, if anv, with effect from the 23^rd February, 2020.]

[13] [Rule 12. Application for incorporation of companies. An application for registration of a company shall be filed, with the Registrar within whose jurisdiction the registered office of the company is proposed to be situated, in [24] [“SPICe+ (Simplified Proforma for Incorporating company Electronically Plus: INC-32)] along with the fee as provided under the Companies (Registration offices and fees) Rules, 2014;

Provided that in case pursuing of any of the objects of a company requires registration or approval from sectoral regulators such as the Reserve Bank of India, the Securities and Exchange Board, registration or approval, as the case may be, from such regulator shall be obtained by the proposed company before pursuing such objects and a declaration in this behalf shall be submitted at the stage of incorporation of the company]

Rule 13. Signing of memorandum and articles.—The Memorandum and Articles of Association of the company shall be signed in the following manner, namely:—

(1) The memorandum and articles of association of the company shall be signed by each subscriber to the memorandum, who shall add his name, address, description and occupation, if any, in the presence of at least one witness who shall attest the signature and shall likewise sign and add his name, address, description and occupation, if any and the witness shall state that “I witness to subscriber/ subscriber(s), who has/ have subscribed and signed in my presence (date and place to be given); further I have verified his or their Identity Details (ID) for their identification and satisfied myself of his/her/their identification particulars as filled in”

(2) Where a subscriber to the memorandum is illiterate, he shall affix his thumb impression or mark which shall be described as such by the person, writing for him, who shall place the name of the subscriber against or below the mark and authenticate it by his own signature and he shall also write against the name of the subscriber, the number of shares taken by him.

[Explanation.- For the purposes of sub-rule (1) and sub-rule (2), the type written or printed particulars of the subscribers and witnesses shall be allowed as if it is written by the subscriber and witness respectively so long as the subscriber and the witness as the case may be appends his or her signature or thumb impression, as the case may
be.][8]

(3) Such person shall also read and explain the contents of the memorandum and articles of association to the subscriber and make an endorsement to that effect on the memorandum and articles of association.

(4) Where the subscriber to the memorandum is a body corporate, the memorandum and articles of association shall be signed by director, officer or employee of the body corporate duly authorized in this behalf by a resolution of the board of directors of the body corporate and where the subscriber is a Limited Liability Partnership, it shall be signed by a partner of the Limited Liability Partnership, duly authorized by a resolution approved by all the partners of the Limited Liability Partnership:

Provided that in either case, the person so authorized shall not, at the same time, be a subscriber to the memorandum and articles of Association.

(5) Where subscriber to the memorandum is a foreign national residing outside India—

(a) in a country in any part of the Commonwealth, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized by a Notary (Public) in that part of the Commonwealth.

(b) in a country which is a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized before the Notary (Public) of the country of his origin and be duly apostillised in accordance with the said Hague Convention.

(c) in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity, shall be notarized before the Notary (Public) of such country and the certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (40 of 1948) or, where there is no such officer by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889 (52 and 53 Vic.C.10), or in any Act amending the same;

(d) visited in India and intended to incorporate a company, in such case the incorporation shall be allowed if, he/she is having a valid Business Visa.

Explanation.—For the purposes of this clause, it is hereby clarified that, in case of Person is of Indian Origin or Overseas Citizen of India, requirement of business Visa shall not be applicable.

Rule 14. Declaration by professionals.—For the purposes of clause (b) of sub-section (1) of section 7, the declaration by an advocate, a Chartered Accountant, Cost accountant or Company Secretary in practice shall be in Form No. INC.8.

Explanation (i) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section 1 of section 2 of the Chartered Accountants Act, 1949 (ii) “Cost Accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 and (iii) “company secretary” means a “company secretary” or “secretary” means as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980.

[20] [Rule 15. Declaration from Subscribers and First Directors.- For the purposes of clause (c) of sub-section (1) of section 7, the declaration shall be submitted by each of the subscribers to the memorandum and each of the first directors named in the articles in Form No.INC-9]

Rule 16. Particulars of every subscriber to be filed with the Registrar at the time of incorporation.—(1) The following particulars of every subscriber to the memorandum shall be filed with the Registrar—

(a) Name (including surname or family name) and recent Photograph affixed and scan with MOA and AOA:

(b) Father’s/Mother’s/name:

(c) Nationality:

(d) Date of Birth:

(e) Place of Birth (District and State):

(f) Educational qualification:

(g) Occupation:

(h) Income-tax permanent account number:

(i) Permanent residential address and also Present address (Time since residing at present address and address of previous residence address(es) if stay of present address is less than one year) similarly the office/ business addresses:

(j) Email id of Subscriber;

(k) Phone No. of Subscriber;

(l) Fax no. of Subscriber (optional).

Explanation.—information related to (i) to (l) shall be of the individual subscriber and not of the professional engaged in the incorporation of the company;

(m) Proof of Identity:

-For Indian Nationals:

-PAN Card (mandatory) and any one of the following

-Voter’s identity card

-Passport copy

-Driving License copy

-Unique Identification Number (UIN)

-For Foreign nationals and Non Resident Indians

-Passport

[Explanation.- In case the subscriber is already holding a valid DIN, and the particulars provided therein have been updated as on the date of application, and the declaration to this effect is given in the application, the proof of identity and residence need not be attached.][9]

(n) Residential proof such as Bank Statement, Electricity Bill, Telephone / Mobile Bill:

Provided that Bank statement Electricity bill, Telephone or Mobile bill shall not be more than two months old;

(o) Proof of nationality in case the subscriber is a foreign national;

(p) If the subscriber is already a director or promoter of a company(s), the particulars relating to-

(i) Name of the company;

(ii) Corporate Identity Number;

(iii) Whether interested as a director or promoter;

(q) [***] [10]

(2) Where the subscriber to the memorandum is a body corporate, then the following particulars shall be filed with the Registrar—

(a) Corporate Identity Number of the Company or Registration number of the body corporate, if any

(b) GLN, if any;

(c) the name of the body corporate

(d) the registered office address or principal place of business;

(e) E-mail Id;

(f) if the body corporate is a company, certified true copy of the board resolution specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subscribed by the body corporate, and the name, address and designation of the person authorized to subscribe to the Memorandum;

(g) if the body corporate is a limited liability partnership [***][11], certified true copy of the resolution agreed to by all the partners specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subscribed in the body corporate, and the name of the partner authorized to subscribe to the Memorandum;

(h) the particulars as specified above for subscribers in terms of clause (e) of sub-section (1) of section 7 for the person subscribing for body corporate;

(i) in case of foreign bodies corporate, the details relating to—

(i) the copy of certificate of incorporation of the foreign body corporate; and

(ii) the registered office address.

Rule 17. Particulars of first directors of the company and their consent to act as such.—The particulars of each person mentioned in the articles as first director of the company and his interest in other firms or bodies corporate along with his consent to act as director of the company shall be filed in Form No.DIR.12 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014.

Rule 18. Certificate of incorporation.— [The Certificate of Incorporation shall be issued by the Registrar in Form No.INC-11 and the Certificate of Incorporation shall mention permanent account number of the company where if it is issued by the Income-tax Department.][15]

[***][14]

[Rule 38. Simplified Proforma for Incorporating Company Electronically [25] [Plus (SPICE+)”] – (l) The application for incorporation of a company under this Rule shall be in [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”] alongwith e-Memorandum of Association (e-MOA) in Form No. IN-33 and e-Articles of Association (e-AOA) in Form no. INC-34.

Provided that in case of incorporation of a company falling under section 8 of the Act, [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”] shall be filed along with FORM No. INC-13 (Memorandum of Association) and FORM No. INC-31 (Articles of Association) as attachments.

[17] [Provided further that in case of incorporation of a company having more than seven subscribers or where any of the subscriber to the MOA/AOA is signing at a place outside India, MOA/AOA shall be filed with [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”] in the respective formats as specified in Table A to J in Schedule I without filing form INC-33 and INC-34]

(2) For the purpose of sub-rule(1), the application for allotment of Director Identification Number upto three Directors, reservation of a name, incorporation of company and appointment of Directors of the proposed for One Person Company, private company, public company and a company falling under Section 8 of the Act, shall be filed in [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”], with the Registrar, within whose jurisdiction the registered office of the company is proposed to be situated along with the fee of rupees five hundred in addition to the registration fee as specified in the Companies (Registration of Offices and Fees) Rules, 2014.

Provided that where an applicant has applied for reservation of a name under Rule 9 and which has been approved therein, he may fill the reserved name as proposed name of the company.

[18] [Provided further that in case of companies incorporated, with effect from the 26th day of January, 2018, with a nominal capital of less than or [21] [equal to rupees fifteen lakhs] or in respect of companies not having a share capital whose number of members as stated in the articles of association does not exceed twenty, fee on INC-32 (SPICe) shall not be applicable.]

(3) For the purpose of fling SPICe Form, the particulars of maximum of three directors shall be allowed to be filled in [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”] and allotment of Director Identification Number of maximum of three proposed directors shall be permitted in [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”] in case of proposed directors not having approved Director Identification Number.

(4) The promoter or applicant of the proposed company shall propose only one name in [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”].

(5) The promoter or applicant of the proposed company shall prepare Memorandum of Association (e-MOA) in Form No. INC.33 and Articles of Association (e-AoA) in Form No. INC-34, in accordance with Rule 13.

Provided that the subscribers and witness or witnesses shall affix their digital signatures to the e-MOA and e-AOA.

(6) For incorporation using application as provided in this rule, provisions of the sub- clause (i) of sub-section (5) of section 4 of the Act, rule 9 and clause (a) of sub-rule (1) of rule 16 to the extent of affixing recent photograph shall not apply.

(7) A Company using the provisions of this rule may furnish verification of its registered office under sub-section (2) of section 12 of the Act by filing [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”] in which case the company shall attach along with such Form No. INC-32 (SPICe), any of the documents referred to in sub-rule (2) of rule 25.

(8) Form no. INC-22 shall not be required to be filed in case the proposed company maintains its registered office at the given correspondence address.

(9) (a) Where the Registrar, on examining [24] [“SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32)”], finds that it is necessary to call for further information or find such application or document to be defective or incomplete in any respect, he shall give intimation to the applicant to remove the defects and re-submit the e-form within fifteen days from the date of such intimation given by the Registrar.

(b) After the resubmission of the document, if the registrar still finds that the document is defective or incomplete in any respect, he shall give one more opportunity of fifteen days to remove such defects or deficiencies.

Provided that the total period for re-submission of documents shall not exceed thirty days.

(10) The Certificate of Incorporation of company shall be issued by the Registrar in Form No. INC-11”.][12]

[22] [Rule 38A. Application for registration of the Goods and Service Tax Identification Number (GSTIN), Employees’ State Insurance Corporation (ESIC) registration and Employees’ Provident Fund Organisation(EPFO) registration [26] [and Profession Tax Registration and Opening of Bank Account]

The application for incorporation of a company under rule 38 shall be accompanied by e-form [27][AGILE-PRO-S] (lNC-35) containing an application for registration of the following numbers, namely:

–

(a) GSTIN with effect from 31st March, 2019

(b) EPFO with effect from 8th April, 2019

(c) ESIC with effect from 15th April, 2019]

[28](d)      Profession Tax Registration with effect from the 23rd February, 2020

(e)   Opening Bank Account with effect from the 23rd February, 2020

(f)   Shops and Establishment Registration.]

 

 

Applicable Circulars

Power of ROCs to obtain Declaration/Affidavits from Subscribers/First Directors at the time of Incorporation

General Circular No. 11/2013 dated 29^th May, 2013

 

The matter of protection of interest of investors including depositors is very important to ensure healthy corporate capital market environment in the country. The recent instances of raising of monies by companies in a manner which is opaque/convoluted, non- accountable and which does not protect interests of depositors have been taken note of by the Ministry seriously.

Keeping in view the need to protect the interest of investors and ensure that companies raise monies in accordance with the provisions of Companies Act/Deposit Rules, it is clarified that in exercise of the powers under the Companies Act, the Registrar of Companies may obtain declaration/affidavits from subscribers/first directors first at the time of incorporation and from the directors, subsequently whenever company changes its objects, to the effect that company/directors shall not accept deposits unless compliance with the applicable provisions of Companies Act, 1956, RBI Act, 1934 and SEBI Act, 1992 and rules/directions/regulations made thereunder are duly complies and filed with the concerned authorities.

Relaxation to Foreign Nationals while filing Incorporation Forms from mandatory requirement of PAN

Circular No. 12/2014, dated 22-5-2014

Attention of Ministry has been drawn to difficulties being faced by Foreign Nationals while filing Incorporation form (lNC-7) due to mandatory requirement of submission of PAN details of intending Directors at the time of filing the application for incorporation.

It is hereby clarified that PAN details are mandatory only for those foreign nationals who are required to possess “PAN” in terms of provisions of the Income Tax Act, 1961 on the date of application for incorporation. Where the intending Director who is a Foreign National is not required to compulsorily possess PAN, it will be sufficient for such a person to furnish his/ her passport number, alongwith undertaking stating that provisions of mandatory applicability of PAN are not applicable to the person concerned. The form of Declaration is required to be made in the proforma enclosed. 

Applicability of PAN requirement for Foreign Nationals

Circular No. 16/2014, dated 10-6-2014

In continuation of the General Circular No. 12/2014 dated 22.05.2014 regards the above subject, it is clarified that the provisions of the said Circular are applicable to a Foreign National who is a subscriber/ promoter at the time of incorporation of the Company.

2. In case the said subscriber/promoter does not possess Permanent Account Number (PAN), he/she shall furnish a declaration in the prescribed proforma, as an attachment to the Incorporation Form (INC.7).
3. Further, it is clarified that, in case of a Resident Director of the proposed company he/she shall be required to submit PAN details at the time of incorporation.

Applicable Notifications

Constitution of Central Registration Centre to process forms pertaining to registration of companies

Notification No. 218(E) dated 22^nd January, 2016

S.O. 218(E).- In exercise of the powers conferred by sub-sections (1) and (2) of section 396 of the Companies Act, 2013 (18 of 2013) (herein after referred to as the Act), the Central Government hereby establishes a Central Registration Centre (CRC) having territorial jurisdiction all over India, for discharging or carrying out the function of processing and disposal of applications for reservation of names under the provisions of the said Act.

2. The CRC shall function under the administrative control of Registrar of Companies, Delhi (ROC Delhi), who shall act as the Registrar of the CRC until a separate Registrar is appointed to the CRC. The CRC shall process applications for reservation of name i.e., e-Form No. INC-1 filed along with the prescribed fee as provided in the Companies (Registration of Offices and Fees) Rules, 2014.

3. Processing and approval of names or names proposed in e-Form No.INC-29  shall continue to be done by the respective Registrar of Companies having jurisdiction over incorporation of companies under the Companies Act, 2013 as per the provisions of the Act and the rules made thereunder.

4. The CRC shall be located at Indian Institute of Corporate Affairs (IICA), Plot No. 6, 7, 8, Sector 5, IMT Manesar, District Gurgaon (Haryana), Pin Code- 122050.

5. This notification shall come into force from 26^thJanuary, 2016.

 

Jurisdiction of Central Registration Centre to process forms pertaining to registration of companies

Notification No. S.O. 1211(E) dated 23^rd March 2016

In exercise of the powers conferred by sub-sections (1) and (2) of Section 396 of the Companies Act, 2013 (18 of 2013) (hereinafter referred to as the Act), the Central Registration Centre (herein after referred to CRC) established vide notification number. S.O. 218(E) dated 22^ND  January 2016 shall also exercise functional jurisdiction of processing and disposal of e-forms and all related matters pertaining to registration of companies under section 7,8 and 366 of the Companies Act, 2013 having territorial jurisdiction all over India.

2. The CRC shall process forms pertaining to registration of companies i.e. e-forms(INC-2, INC-7 and INC-29 along  with linked forms INC-22, DIR-12 and URC-1 and any other forms as may be notified by the Central Government) filed along with the prescribed fee as provided in the Companies (Registration of Offices and Fees) Rules, 2014.
3. The jurisdiction, processing and approval of name or names proposed in e-Form number INC-29 hitherto exercised by the respective Registrar of companies having jurisdiction over incorporation of companies under the Companies Act, 2013 and the rules made thereunder shall forthwith be exercised by Registrar, CRC.
4. The jurisdictional Registrar of companies, other than Registrar CRC, within whose jurisdiction the registered office of the company is situated shall continue to have jurisdiction over the companies incorporated by the Registrar, CRC under the Companies Act, 2013 for all other provisions of the Act and the rules made thereunder, which may be relevant after incorporation.
5. This notification shall come into force from28^thMarch, 2016

FAQs on SPICe

1. How many names can be applied for in SPICe (INC-32)?

Only one. However, for reservation of a name prior to filing SPICe (INC-32), you may use INC-1 (in which up to 6 names can be proposed) and then input the SRN of approved INC-1 into SPICe.

2. What is the mode of grievance redressal?

In case of technical problems i.e., form upload, pre-scrutiny errors, DSC related, payment related queries, please raise a ticket on www.mca.gov.in/myservices….. and await a resolution. You may also call up Corporate Seva Kendra at 01244832500 after 48 hours if ticket is not resolved.In case of resubmission / rejection remarks, please contact 01244832500 and select option 1 for CRC. For escalation you may send a mail to crc.escalation@mca.gov.in

3. Is INC-22 still required to be filed with SPICe?

It is not required to be filed with SPICe (INC-32) if a company is registered with address for correspondence only (in INC-32). INC-22, is required to be filed within 30 days of its incorporation, for intimating the registered office address.

4. What is the process for obtaining approved e-MOA (INC-33) and e- AOA (INC-34)?

The users may obtain approved e-MOA (INC-33) and e- AOA (INC-34) through certified copies facility available on MCA.

5. Is, PAN and AADHAAR mandatory?

Yes. The companies (incorporation) rules notified has liberalized many requirements in respect of Proof of Identity and Proof of residence in respect of Subscribers and Directors. The Companies (Incorporation) third Amendment Rules dated 27th July 2016 has relaxed the mandatory attachment of proof of identity and residence in respect of a subscriber having a valid DIN.

6. Which attachments are removed in SPICe form?

Attachment no. 7 (Proof of relation) and 9 (NOC from any other person) are deleted.

7. Is it mandatory to use eMoA and eAoA? Can physical copies of MoA/AoA be signed and attached with SPICe forms?

Yes. It is mandatory in all cases of Indian subscribers, foreign individual subscribers (having a valid DIN) and where the number of such subscribers is not more than seven. No physical copies of MoA/AoA are required to be attached.

8. Can SPICe be used for incorporation of producer companies?

No. For incorporation of producer companies, unregistered companies and companies being formed with more than 7 subscribers, new version of INC-7 shall be used.

9. If a body corporate is one of the subscribers/promoters, can DSC of anauthorised Director be affixed?

Yes.

• Can, foreign subscribers file SPICe (INC-32) or are they required to file in INC-7?

Yes, foreign subscribers having valid DIN can file SPICe(INC-32) with eMoA(INC-33) and eAoA(INC-34) as linked forms. However, in case of foreign individual subscribers without a valid DIN, form INC-7 shall be used with physical MoA and AoA.

11. In SPICe AoA (INC-34) if additional Article is required, how to enter the same?

SPICe AoA (INC-34) has facility for adding, modifying, deleting and entrenching Articles.

12. Can we enter the conditions ofprivatecompany as required under Section 5 of the Companies, Act, 2013 in SPICe AoA(INC-34)?

Yes, SPICe AoA (INC-34) has facility for adding, modifying, deleting and entrenching Articles.

13. Can we enter the names of first directors as required under Companies Act, 2013, in SPICe AoA (INC-34)?

Yes, SPICe AoA has facility for adding, modifying, deleting and entrenching Articles.

14. What if there are more than seven subscribers to MoA and AoA?

INC-7 shall be used.

15. Incaseof subscriber to the memorandum is a foreign national residing outside India, his signatures and address etc. shall be witnessed by a Notary Public/Embassy/Consulate offices of Embassies as per the Rule 13 of the Companies (Incorporation) Rules, 2014. In such cases, how the DSC of such a witness be affixed?

In such cases, SPICe (INC-32) shall be filed with manually signed and duly attested MoA and AoA.

16. Is DSC mandatory for Subscribers?

Yes, DSC is mandatory for all subscribers and witnesses in eMoA(INC-33) and eAoA(INC-34). eMoA and eAoA shall be used only where the maximum number of subscribers do not exceed 7. In case the number of subscribers are more than 7, INC-7 shall be used and DSC is not mandatory in such cases.

17. Can we use SPICe form now for resubmitting incorporation applications filed in form INC-2 /7 earlier?

No. SPICe cannot be used in such cases. However, form INC-2/7 shall be available for resubmission cases only for a period of 15 days from the date the form was sent for resubmission by CRC.

• Whether subscribers’ photo is required in SPICe forms?

No. Subscribers’ photo is not required.

19. How many resubmissions are permitted for SPICe forms?

Two.

20. Can OPCs be incorporated using SPICe forms?

Yes. Form INC-2 will no longer be available for filing.

21. Can LLPs be incorporated using SPICe forms?

No.

22. What is the word limit for writing objects in eMoA?

For main Objects (Field 3(a)), character limit is 20,000 and for furtherance of objects (Field 3(b)), it is 1,00,000 characters.

23. Please clarify on attestation requirements in respect of foreign companies wanting to form a subsidiary in India?

Attestation requirements will be as per Rule 13 of the Companies (Incorporation) Rules, 2014.

24. Is SPICe eMoA (INC-33) and SPICe eAoA (INC-34) to be uploaded separately?

SPICe eMoA and eAoA have to be uploaded as ‘Linked Forms’ to SPICe (INC-32).

25. What if the subscribers to eMoA and eAOA are at different places as only one witness is provided?

eMoA and eAOA would be witnessed after all subscribers have signed as is happening presently.

26. Is refund applicable if SPICe forms get rejected?

Yes.

27. What is the maximum upload size of SPICe forms?

6 MB.

28. Can NIDHI Company be incorporated using SPICe forms?

Yes.

29. Is filing of SPICe forms optional or mandatory for the incorporation of companies?

Presently it is optional. However in the next few weeks, SPICe form would be the only form available for incorporation of any company except for a Producer Public Company or a Part I Company or in cases where there are more than seven subscribers.

 

 

[1] Inserted by the Companies (Incorporation) Second Amendment Rules, 2015 vide Notification No. F No. 1/13/2013-CL-V dated 29th May, 2015

[2] Substituted by the Companies (Incorporation) Amendment Rules 2015 vide vide Notification F No. 01/13/2013 CL-V (Part-I), dated 1st May 2015. Prior to substitution, it read as under:

“the specimen signature and latest photograph duly verified by the banker or notary shall be in the prescribed Form No. INC.10”

[3] Form INC.10 substituted by the Companies (Incorporation) Amendment Rules 2015 vide Notification F No. 01/13/2013 CL-V (Part-I), dated 1st May 2015.

[4] Form INC.11 substituted by the Companies (Incorporation) Amendment Rules 2015 vide vide Notification F No. 01/13/2013 CL-V (Part-I), dated 1st May 2015

[5] Inserted by the Companies (Incorporation) Amendment Rules, 2016 vide Notification No. G.S.R 99(E) dated 22nd Jan, 2016

[6] Substituted by the Companies (Incorporation) Amendment Rules, 2016 vide Notification No. G.S.R 99(E) dated 22nd Jan, 2016. Prior to substitution it read as under:

“(c) In case, the Registrar is of the opinion that the document is defective or incomplete in any respect after giving such two opportunities, the e-form INC.29 of the proposed company shall be rejected.”

[9] Inserted by the Companies (Incorporation) Third Amendment Rules 2016 vide Notification 743(E) dated 27th July 2016

[10]Omitted by the Companies (Incorporation) Third Amendment Rules 2016 vide Notification 743(E) dated 27th July 2016, prior to omission it read as under:

“the promoter or first director shall self attest his signature and latest photograph in [Form No. INC 10”

[11] Omitted words ” or partnership firm” by the Companies (Incorporation) Third Amendment Rules 2016 vide Notification 743(E) dated 27th July 2016.

[12] Substituted by the Companies (Incorporation) Fifth amendment Rules 2016 vide Notification no. F. No. 1/13/2013 CL -V dated 29th December 2016 effective from 1 st January 2017, prior to substitution it read as under:-

“Rule 38. Simplified Proforma for incorporating Company Electronically (SPICE)

(1) The simplified integrated process for incorporation of a company in Form No. INC-32  alongwith e-Memorandum of Association in Form No. INC-33 and e-Articles of Association in Form No. INC-34.

(2) The provisions of sub-rule (2) to sub-rule (13) of rule 36 shall apply mutatis mutandis for incorporation under this rule.

Provided that for the purposes of references to form numbers INC-29, INC-30 and INC-31 in rule 36 with Form No. INC-32, Form no.  INC-33 and Form No. INC-34 shall be substituted respectively.”

[13]  Substituted by Companies (Incorporation) Amendment Rules, 2018 vide G.S.R. 49(E) dated 20th January, 2018 effective from 26th January, 2018. Prior to substitution it read as under:

“Rule 12. Application for incorporation of companies.—An application shall be filed, with the Registrar within whose jurisdiction the registered office of the company is proposed to be situated, in [Form No. INC.7 (Part I Company and Company with more than seven subscribers) and Form no. INC.32 (SPICe)] along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 for registration of a company.

Provided that in case pursuing of any of the objects of the company requires registration or approval from sectoral regulators such as Reserve Bank of India, Securities and Exchange Board, registration or approval, as the case may be, from such regulator shall be obtained by the company before pursuing such objects and declaration in this behalf shall be submitted at the stage of incorporation of the company.”

[14] Omitted “Rule 36 on Integrated Process for Incorporation” by the Companies (Incorporation) Fifth amendment Rules 2016 vide Notification no. F. No. 1/13/2013 CL -V dated 29th December 2016 effective from 1 st January 2017

[15] Substituted by the Companies (Incorporation) Amendment Rules, 2017 vide Notification no. G.S.R. 70(E) dated 25^th January 2017 effective from 30^th January 2017, prior to substitution it read as under:-

“The Certificate of Incorporation shall be issued by the Registrar in Form No. INC.11.”

[16] Substituted by Companies (Incorporation) Second Amendment Rules, 2018 vide Notification No. F.No. 1/13/2013 CL-V, part-I, Vol. II dated 23^rd March, 2018. Prior to substitution it read as under:

“Rule 9. Reservation of name.- An application for reservation of name shall be made through the web service available at www.mca.gov.in by using RUN (Reserve Unique Name) along with fee as provided in the Companies (Registration offices and fees) Rules, 2014, which may either be approved or rejected, as the case may be, by the Registrar, Central Registration Centre”

[17] Inserted by Companies (Incorporation) Amendment Rules, 2018 vide G.S.R. 49(E) dated 20th January, 2018 effective from 26th January, 2018.

[18] Inserted by Companies (Incorporation) Amendment Rules, 2018 vide G.S.R. 49(E) dated 20th January, 2018 effective from 26th January, 2018.

[19] Substituted for the words “an affidavit” by the Companies (Amendment)Act, 2017 vide Notification No. File No. 1/1/2018- CL.I dated 27^th July, 2018.

[20] Substituted by the Companies (Incorporation) Third Amendment Rules, 2018 vide Notification No. F. No. 1/13/2013-CL-V, part-I, Vol.II dated 27^th July, 2018.. Prior to the substitution it read as under:

“ Rule 15. Affidavit from subscribers and first directors.—For the purposes of clause (c) of sub-section (1) of section 7, the affidavit shall be submitted by each of the subscribers to the memorandum and each of the first directors named in the articles in Form No. INC.9.”

[21] Substituted for the words “equal to rupees ten lakhs” by the Companies (Incorporation) Second Amendment Rules, 2019 dated 6th March, 2019 effective from 18th March, 2019.

[22]Inserted by the Companies (Incorporation) Third Amendment Rules, 2019 vide Notification No. G.S.R. 275(E)dated 29th March, 2019.

[23] Substituted by Companies (Incorporation) Amendment Rules, 2020 vide Notification No. G.S.R 128(E) dated 18^th February, 2020 effective from 23^rd February, 2020. Prior to substitution, it read as under:

[Rule 9. Reservation of name.- An application for reservation of name shall be made through the web service available at www.mca.gov.in by using RUN (Reserve Unique Name) along with fee as provided in the Companies (Registration offices and fees) Rules, 2014, which may either be approved or rejected, as the case may be, by the Registrar, Central Registration Centre after allowing re-submission of such application within fifteen days for rectification of the defects, if any.]

[24] Substituted for the words “Form No INC-32 (SPICe)” Companies (Incorporation) Amendment Rules, 2020 vide Notification No. G.S.R 128(E) dated 18^th February, 2020 effective from 23^rd February, 2020.

[25] Inserted by the Companies (Incorporation) Amendment Rules, 2020 vide Notification No. G.S.R 128(E) dated 18^th February, 2020 effective from 23^rd February, 2020.

[26] Inserted by the Companies (Incorporation) Amendment Rules, 2020 vide Notification No. G.S.R 128(E) dated 18^th February, 2020 effective from 23^rd February, 2020.

[27] Substituted for the word “AGILE-PRO” by Companies (Incorporation) Fourth Amendment Rules, 2021 vide Notification No. G.S.R. 392(E) dated 7th June, 2021

[28] Substituted by the Companies (Incorporation) Fourth Amendment Rules, 2021 vide Notification No. G.S.R. 392(E) dated 7th June, 2021. Prior to substitution it read as under:—

“[(c)   Profession Tax Registration with effect from the 23rd February, 2020

(d)   Opening of Bank Account with effect from 23rd February, 2020]”