Sandeep Ahuja & Co.

Established in the year 1986, we are a leading chartered accountancy firm based in Delhi & NCR rendering comprehensive professional services which include statutory audit, internal audit, direct tax, transfer pricing, GST, bank audit, propriety audit, cost accounting, internal financial controls and risk advisory.

Tuesday, January 3, 2017

Incorporation of Company under Companies Act 2013- Part-1

Ministry of Corporate Affairs (‘MCA’) has come up with new rules for Incorporation of Company with simplified procedure.MCA has now issued a New E-form called SPICe which is a simplified version  of previous forms . Now Incorporation of companies can be done through two ways :
1.     SPICe e-form
2.     Revised INC-7(Normal procedure)
A brief description of both forms along with their Advantages and using steps are detailed here
SPICE : A Simplified Proforma For Incorporating Company
(for OPC & Company having less than seven Subscribers)
The Ministry of Corporate Affairs has taken another bold & appreciable initiative by Simplified Proforma for Incorporating Company Electronically (SPICe) e-Form with the specific objective of providing speedy incorporation related services within stipulated time frames
Salient Features of SPICe- eform(INC-32)
·         SPICe- e form (INC-32) can be filed even if INC-1 has already been filed for application of “ Name of Company”
·         SPICE has provided Digital filing for MOA and AOA through forms INC-33 and INC-34 respectively.
·         MOA can be copied from a pre-drafted file and AOA can be pre- drafted against the clauses given in Form INC-34.
·         Digital Signature of directors can be affixed with INC-34 and INC-35 electronically.
·         INC-32 is  a Simplified version of INC-29 with a addition of details regarding MOA and AOA
·          Incorporation of Section -8 Companies.
·         The filing fee for SPICe has also been reduced from Rs.2000 to Rs.500 and number of resubmissions from three to two.
Advantages of Filing SPICe- eform (INC-32)
·         No Requirement to file Several  Documents for Incorporation  of company
·          A  simplified and completely electronic  form for Company Incorporation
·         Standard format of e-Memorandum of Association as per Companies Act, 2013
·         Standard format of e-Articles of Association as per Companies Act, 2013
·          Memorandum and Articles will now be filed as linked e-forms (except for Section 8 companies)
·         Provision to apply for Company Incorporation with a preapproved Company Name
·         Mandatory DSCs of Subscribers and Witnesses (max 7+1) in SPICe MOA and SPICe AOA
·         A hassle free and time saving procedure for Incorporation of Companies in India.
Procedure for Incorporation of company using Spice-e form
In the Previous E-form INC-29  there was a restriction i.e. if Company filed INC-1 for proposal of name then it was not possible for the Company to file INC-29.Because INC-29 was not providing the way to file if company already has got name approval by INC-1.
But in INC-32 at point no. 5(a)(i) of INC-32 there is a option “Whether Name is already approved by Registrar of Companies” Company has to select  Yes or No in this Option.
In case of Yes (Means Company has got name approval in INC-1) then mention the SRN of such INC-1. But in case name is not approved by INC-1 then mention the name and significance as we were applying in INC-29.
SPICe will be the Sole, Simplified & Versatile form available for incorporation of One Person Company & Company having up to seven Subscribers including Section 8 companies. It is Just a simpler Version of INC-29  with few modifications in it .the major change in INC-32 is now stakeholders can digitally file MOA & AOA of company Through form INC-33 & INC34 respectively.
E-memorandum of Association:  This is new feature. Now e-MOA (Electronic MOA) has been prescribed by MCA. In e-form No. INC-33. This is the first time facility provided by the Ministry to prepare MOA & AOA in electronic mode
Information Required to be Mentioned In Form INC-33:
  • Select the table applicable on Company [A,B,C,D,E]. Based on selected table, relevant fields would be displayed below
  • SRN of INC-1, If filed. (this should be same as mentioned in the linked form INC-32)
    • Then press Prefill button.
    • Then Name and State will be prefilled.
    • Give the correct details of the objects to be pursued by the company.
    • Mention the required information (furtherance of object, Share Capital, subscriber details, liability clause) in the form
  • If INC-1 not filed then fill the following information
    • Mention the Name of Company
    • State of Incorporation
    • Objects of Company
    • Furtherance of Object
    • Fill the subscriber sheet
    • Detail of Capital of the Company
  • Instead of Signature of Subscriber affix the DSC of subscribers.
By affixation of DSC of the subscriber on the INC-33 (e-moa) date of signing will be filling automatically by the form.
  • Instead of Signature of witness affix the DSC of [2]
  • Click on Check form and file with INC-32 in linkage.
E-Article of Association: This is new feature. Now e-AOA (Electronic AOA) has been prescribed by MCA. In e-form No. INC-34. This is the first time facility provided by the Ministry to prepare MOA & AOA in electronic mode.
Information Required to be Mention In Form INC-34:
  • Select the applicable standard table as notified under Schedule I to the Companies Act, 2013.
  • On the basis of selection, relevant ‘Articles’ clauses will be appear.
  • To hide any article, click on 1st check box ‘Not applicable’ against the respective article.
  • To entrench the article, click on 2nd check box ‘Altered’ against the respective article.
  • Director name(s) should be entered mandatorily under “Board of directors”. Mention different appointments as a sub-article E.g. (a) – Managing Director, (b) – Director Names etc.
  • Articles in addition to the standard table shall be mentioned in last blank box ‘Others
  • Mention SRN of INC-1, If filed. If not filed then mention the proposed name.
  • Instead of writing of clause of AOA just select from any two options IF
    – Not Applicable’ or
  • Altered
  • Instead of Signature of Subscriber affix the DSC of subscribers.
By affixation of DSC of the subscriber on the INC-33 (e-moa) date of signing will be filling automatically by the form.
  • Instead of Signature of witness affix the DSC of Witness.
  • Click on Check form and file with INC-32 in linkage.
Mandatory Attachments:
  • Affidavit and declaration by first subscriber(s) and director(s);
  • Proof of Office address (Conveyance/ Lease deed/ Rent Agreement etc. along with rent receipts);
  • Copy of the utility bills (not older than two months)
  • Companies have option to go by route of e-form INC-32 or earlier route INC-1, INC-7, DIR-12 and INC-22.
  • Director has to give declaration at the end of the form that he have check the name on MCA website and Trade Mark Website.
  • DSC of Director will be affix on form. {In case of director don’t have DIN then mention PAN No. of director at the place of affixing of DSC)
  • DSC of professional will also affix on the form.
  • List of main divisions of industrial activities given as Annexure A in the instruction Kit of INC-32.
  • Only one name can be applied for approval in this e-form. Therefore, one is advised to duly check the proposed name and follow name availability guidelines, existing trade marks to avoid rejection.
  • Only Three re-submissions are allow
·          In case of  the witness doesn’t have DSC then follow the normal incorporation procedure
Revised INC-7 (For Company having more than seven subscribers)
·         Companies have option to go by route of e-form INC-32 or earlier route INC-1, INC-7, DIR-12 and INC-22.
·         INC-2 is deprecated and INC-7 shall be used for incorporating Part I Companies and companies with more than seven subscribers only.
·         A revised INC-7 shall be made available on MCA portal w.e.f. 15th January 2017 For Companies having more than seven subscribers or foreign national subscribers not having a valid DIN
·         Stakeholders who have already filed INC-2 or INC-7 prior to the notification of this change would be able to resubmit previous versions of these forms (if required), within a stipulated time period.
·         Filing Form 3 within 30 days of incorporation is mandatory. It is advised to ensure that Form 3 (Information with regard to Limited Liability Partnership agreement and changes, if any, made therein) has been mandatorily filed for initial agreement before filing of Form 8.

Contributed by: Anita Kanwar CA Finalist at Sandeep Ahuja & co


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