Role of the Registrar of Companies in the Incorporation Process
September 25, 2019
Who is a Registrar of Companies?
Section 2(75) of the Companies Act defines ‘Registrar’ as a “Registrar, an Additional Registrar, a Joint Registrar, a Deputy Registrar or an Assistant Registrar, having the duty of registering companies and discharging various functions under this Act.”
The registrar is the key person both at the time of incorporation as well as at the time of winding up. All the returns are also to be filed with him. He is fundamental in allotting a name to the company thus providing an identity to the Company. Once the Company gets registered its effect are given under the Section 9 of the Act which states that the Company would now be recognised as a separate legal entity, can buy or sell any property or enter into any transaction in its own name, etc.
Certificate of Incorporation to be granted by the Registrar
The Registrar has to keep in mind various substantive as well as various procedurals aspects of the Companies Act and Rules for incorporation in mind while granting the Certificate of Incorporation. Certificate of Incorporation is an important document as it acts as a proof of the existence of a company. Any mistake or non-compliance by the Company with respect to either of the rules or provisions leads to Registrar to not grant the Certificate.
Procedure for Incorporation under substantive sections of Companies Act, 2013
Section 7 of the Companies Act, 2013 states the procedure and requisites of incorporation of a company. Section 7(1) lays down the documentation required to be filed with the registrar while incorporation. They are:
- Memorandum of Association
- Article of Association
- A declaration of compliance with provisions of the Act by an Advocate, Companies Secretary, Chartered Accountant or Cost Accountant currently in practice and by the director, manager or secretary named in the Articles.
- An Affidavit in declaration by all the subscribers and the first directors stating that they have not been convicted of any offence relating to fraud, breach of duty or misfeasance to any other company formed under the present Companies Act or any other previous company law.
- The Correspondence Address till the registered office comes into the picture.
- Complete details of the first Directors of the Company with family or surname, address, Director Identification Number (DIN) and any identity proof. Director Identification Number is a unique 8 digit identification number introduced by a way of an amendment in 2006 which has to be obtained by each of the directors within a prescribed time frame.
- Interests of first directors with their consent of becoming the first directors of the Company.
Under Section 7(2) the Registrar records the submission of all the documents submitted and if satisfied give the Certificate of Incorporation.
Thus, the first situation under which the Company may not be getting registered with the RoC is due to the deficiency or incomplete documents as stated in Section 7(1). It is also to be kept in mind that application is made to the registrar having a jurisdiction of that area.
Section 4 of the Companies Act, 2013 also states the uniqueness of the Company name that is to be chosen.
Company (Incorporation) Rules, 2014
The substantive provisions of the Act should be read along with the incorporation rules of 2014. The relevant rules are as follows:
- Rule 8 states the different standards that are to be kept in mind while choosing a unique name for the company. it is a detailed rule which exhaustively gives the list of things that are to be kept in mind while choosing a name.
- Rule 9 states that the reservation of unique name (RUN) can be made through MCA Website (www.mca.gov.in) and by paying the requisite fees the name can be reserved.
- According to Rule 10, the Registrar is to be given a notice of any entrenchment provision the Articles of the Company.
- Under Rule 12, the application for incorporation is to be made to Registrar having the jurisdiction where the registration office is situated.
- Under Rule 13 lays down extensive manner and procedure which is to be followed for getting the MoA and AoA signed. It is desirable to follow such procedure for avoiding any mistakes.
- Rule 14 and 15 lay down the provision for the declaration by professionals and affidavits to be filed by subscribers and directors respectively.
- Rule 16 gives the details of the information of the Directors that are required for Registration. It is of utmost importance that all the information therein shall be filled carefully to avoid any problem in the process of registration.
Fast Track Registration under INC-29
The new INC-29 inserted by Rule 36 of Company (incorporation) Rules, 2014 requires the Companies to get incorporated electronically. Steps that are to be followed give the basis for rejection or acceptance of application of the form. This can be followed by public, private and one person companies.
- Digital Signature Certificate (DSC) of Class II type containing the signature of the director of the company shall be obtained from any of the providers listed with Ministry of Corporate Affairs (hereinafter MCA) like e-Mudhra, Tata Consultancy Services and others. DSC may get rejected due to minor mistakes like that of spellings or maybe not using Class II form or using abbreviations or prefixes. Director Identification Number (DIN) is also to be obtained by filling Form No. DIR-3.
- Availability of Company Name on the website of MCA has to be searched for. Ideally, the company name should be unique and should not resemble any company which is existing in the same business or an established trademark. Any resemblance leads to outright rejection by the RoC.
- After the Name is approved the Company has to prepare its Memorandum of Association (hereinafter MoA – Section 2(56) of the Companies Act, 2013) and Articles of Association (hereinafter AoA- Section 2(5) of the Companies Act, 2013). The MoA of the Company is the most fundamental Document of the Company which contains the following clauses (in chronological order): Name Clause, Situation Clause, Objects Clause, Liability Clause, Capital Clause and Subscription Clause. The AoA, on the other hand, specifies the rules, regulations and bye-laws for the internal governance of the Company. It contains clauses such as Powers of the Directors, Shareholders’ rights, Employee Protection, ESOPs, etc. One of the important provisions with regards to the formation of a Private Company is a restriction on transferability of shares.
- The Company has to upload the above mentioned required documents in the following order DIN Application, Name Approval, MoA and AoA, Registered Office Verification and Appointments and Declarations.
- File Form INC-29 along with registration fees and required stamp duty. CIN number is provided to the Company if timely and accurate compliance with procedures are undertaken by the Directors.
After all these steps if the Registrar is satisfied with the documents then he will issue the certificate of incorporation and if he is not then he will return the documents for correction rejecting the first application made.
INC-7 Form for incorporation
Along with Company (Incorporation) Rules, 2014 and Section 7 of the Companies Act, INC-7 an e-form has to be filled and submitted to the RoC if the company does not opt for integrated and fast-track registration under INC-29.
- Similar to the INC-29, first DSC and DIN No. have to be acquired by the Directors of the Company, 3 in case of public company and 2 in case of private company.
- For reservation of name with compliance with Rule 8 and 9, the Company has to fill e-form INC-1 for the same with required fees.
- Payment of the required fees at each step is governed by Table of Fees attached as an annexure in Companies (Registration Offices and Fees) Rules, 2014 wherein the payment can be made through online (Credit Card and Net Banking) or offline portals (Challan). If the payment is not complete in the requisite time then the e-Form INC-1 will be treated as incomplete and consequently, the process of registration will not be completed. Also, it is to be borne in mind that all the details through online mode are correct otherwise the MCA 21 website will redirect to a fresh application.
- After the e-form 1 is submitted there might be instances where a person would like to review the form filled at different stages before the final stage of going to the RoCs’ office. There are options for pre-scrutiny, modify and others for the complete satisfaction of the person. Once it goes to RoCs office the electronic form cannot be changed and thus the RoC shall accept the form as it is for background check and scrutiny.
- The form shall be submitted by attaching the DSC to the RoC.
- The RoC after this stage can reject the application if the name is not available for the company with the reasons for refusal to grant the name.
- Before finally submitted the MoA and AoA, check and recheck the clauses so that there is no correction or hassles during the time of incorporation by the RoC and the Stamp Duty shall be payable on both MoA and AoA with respect to the Stamp Act. Do not forget to follow the Rules for MoA and AoA that are to be followed before submitting the Documents. Inc-8 by professionals and INC-9 by the subscribers or directors are also to be filed along with these documents. Form INC-22 is to be filed for verification of the Address.
Again, Compliance with all these rules is mandatory and thus if there is any deficiency in the form then the RoC can reject the application form.
Please note that under both INC-29 and INC-7 obtaining PAN (Permanent Account Number) and TAN (Tax Deduction Account Number) is optional but advisable.
Under electronic form 32 which is used for incorporation of the Companies, there are various requirements with regard to information of the type of the company, name approval, registered office and all the rules mentioned above in the preceding sections as discussed in detail.
Registration of One Person Company (OPC)
One Person Company is a new concept under the New Companies Act wherein only one member can be the member of the company and he or she has to nominate one other member with the consent of that member.
- Rule 3 lays down in detail as to who can run an OPC and by following what procedure. Only a natural person who is a citizen and resident of India (not less than 182 days of the immediately preceding one year) can become the owner and nominee of such company. The subscriber to the memorandum in this can be a sole subscriber to only on such company at a particular period of time. Minor cannot be a nominee or a member of an OPC.
- OPC cannot be formed to be converted into a Section 8 company or cannot carry non- banking financial investment activities.
- Rule 4 lays down that Form INC2 for the nomination of another member and INC 3 for written consent of the member have to be given with the required fee under Companies (Registration Offices and Fees) Rules, 2014.
- One Person Company has to be within the limits of its paid-up capital and specified turnover. The minimum paid-up capital should not exceed more than Rs. 50 lakhs and the turnover should not exceed more than Rs. 2 crores for a particular period (Preceding three years).
- Apart from this, all the criteria which were there for incorporating any public or private company are to be followed under Form INC-7 and INC-29 and pay the fees accordingly.
Other Important Considerations
- It is to be kept in mind that following forms are to be submitted to Registrar – Form 1, 18 and 32
- The Memorandum and Articles of Association of the company shall be duly stamped by paying the requisite stamp duty which varies from state to state.
- The application form shall only be submitted to the Registrar having the jurisdiction to issue the certificate of incorporation in that area.
- RUN (Reservation of Unique Name) facility should be used by the Companies to reserve the name along with a fee of Rs. 1000.
What happens when the RoC refuses to give the Certificate of Incorporation?
There are two possible outcomes when RoC turns down the application for registration:
- If there is a defect which can be cured by alteration, say in Memorandum or Articles of the Company, the directors may by passing a special resolution alter the Articles or Memorandum (as the case may be) and apply again to the RoC.
- The Company may decide to appeal against the decision to NCLT. The Court back in the 1900s in the normal course would not interfere with the decision of the Registrar as it was assumed to be a conclusive proof of incorporation and decision of Registrar would be final.
But, now the Court may interfere with the decision of the Registrar and may reverse its findings if it finds out that there was procedural impropriety and the certificate is wrongfully refused to be granted.