2. Contents 3. Change of Name 4. Regulatory Provisions-Section
21 Company can change its name bySpecial Resolution& prior
approval of theCentral Government( ROC ). If the change consists
only of addition /deletion of wordPrivate ,then ROC approval would
not be required. 5. Procedure Of Name Change 6. Key Points..
- The main objects of the company should be commensurate with
proposed name otherwise the main objects of the company should be
altered first.
- A copy of MOA is to be attached with a Form 1A
whileapplyingforname availability.
- In case of listed Company there should be a gap of atleast 1
year between 2 name changes.
- In case of listed company, If change in name signifiesnew
activity & then atleast 50%of revenues of preceding year must
be from those activities.
7. Key Points..
- Before Submission of name change papers with the ROC, the
following has to be checked:
-
-
- Annual filings for last two Years
-
-
- Appointment of MD & Company Secretaryif required by the
company
-
-
- Qualifications in Auditors report.
-
-
- Transactions related to 297/295
8. Regulatory Provisions-Section 22
- Applicable in case of registration of two companies with
identical or similar name.
-
- On application by owner of registered trademark,
-
- Direct the company , which is registeredlater to change its
name within period of 3 months from the date of order
- The Regional Director can only pass order to change the name
within 12 months of first registration or registration by new
name.
- No application for rectification can be made by owner of
registered trademark, after5 years of registration of company.
9. Procedure-Self Rectification 10. Procedure-Rectification by
other 11. Change of Object Clause 12. Regulatory Provision -
Section 17 A Company may by Special Resolution alter its object
clause 13. Procedure 14. Regulatory Provision - Section 18 15.
Regulatory Provision - Section 19 16. Considerable Points 17.
Shifting of Registered Office 18. Shifting of Registered Office
19.
- Shifting of Registered Office
- within Local Limits of City or Town
20. Procedure 21.
- Shifting of Registered Office
- City or Town within the same state
22. Procedure 23.
- Shifting of Registered Office
- from jurisdiction of one ROC to
- another within same State
24. Regulatory Provision - Section 17A
- NoCompanyshallChangethe place of itsRegistered Officefrom one
place to another within a state unless such change isconfirmedby
theRegional Director
25. Procedure 26.
- Shifting of Registered Office
- from one State to another
27. Regulatory Provision - Section 17 (1) A Company may
bySpecial Resolutionchange the place of Registered officefrom one
state to another 28. Regulatory Provision - Section 17 (2)
- Changeshall take effect only if it isconfirmedby theCompany Law
Board on Petition
29. Procedure *In case of Listed Company, Process will be
carried through Postal Ballot 30. Post Approval of Petition
- Form 21 -attachments CLB Order, Certified copy of Altered
Memorandum of Association.
- Form 18 attachments CLB Order, Board Resolution noting CLB
order and effecting change of registered office or if enabling
resolution passed earlier, such board resolution, Certified copy of
Altered Memorandum of Association, Copy of paid SRN of Form 21
evidencing that Form 21 has already been filed.
31. Registration Process of Form 18
- Old ROC to approve Form 21
- New ROC to approve Form 18 after verifying that Form21 has been
approved and registered by Old ROC
- On approval of Form 18 by New ROC a new CIN number would be
generated
- A message would be sent by system to Old ROC and then Old
Rocshall approve Form 18
- System would generate a new Certificate of Incorporation
32. Appointment of Director 33. Modes of Appointment 34. BY
BOARD OF DIRECTORS
35. Regulatory Provision-Additional Director
- As perSection 260of theCompaniesAct, 1956, theBoard of
Directors of the Company can appoint Additional Directorand such
Director shall hold their office till the start of the next Annual
General Meeting
36. Key points.
- Additional Director can be appointed by resolution passed by
circulation.
- Additional Directors are not counted for the purpose of
ascertaining the Directors liable to retire.
- Additional Director should be appointed within the overall
limit of number of Directors prescribed by the Articles of
Association.
37. Procedure- Additional Director
- Additional Director will submit the following :
-
- Consent to act as Director u/s 264, in case public company
-
- Declaration of interest u/s 299 of the Act.
-
- Declaration of qualification u/s 274 (1)(g) of the Act
38. Regulatory Provision-Casual Director
- As perSection 262of the Act, a public company or a private
company which is a subsidiary of a pubic company, if the office of
anydirector appointedby the company in General Meeting is,vacated
before his, term of officewill expire in the normal course, the
regulating casual vacancy may, in default of and ,subject to any
regulation, in the article, of the company,be filled by the Board
of directors at a meeting of the Board.
39. Key points.
- The concept of casual vacancy does not apply to Private
Company.
- Casual Vacancy can only be filed in the meeting of Board of
Directors.
- Casual vacancy can only be in case ofDirectors who areappointed
in the general meeting
- The person appointed to fill the casual vacancy shall hold his
office as per the tenure of the Director , in whose place he was
appointed.
40. Procedure- Casual Vacancy
- Director appointed shall submit the following :
-
- Consent to act as Director u/s 264, in case public company
-
- Declaration of interest u/s 299 of the Act.
-
- Declaration of qualification u/s 274 (1)(g) of the Act
41. Regulatory Provision-Alternate Director
- As per section 313(1) of the Act, the Board of directors of a
company may, if so authorised by its articles or by a resolution
passed by the company in general meeting, appoint an alternate
director to act for a director (here in after in this section
called the original director) during his absence for a period ofnot
less than three months from the Statein which meetings of the Board
are ordinarily held.
- As per section 313(2) of the Act, an alternate director
appointed under subsection (1) shall not hold office as such for a
period longer than that permissible to the original director in
whose place he has been appointed and shall vacate office If and
when the original director returns to the State in which meetings
of the Board are ordinarily held.
42. Key Points..
- The Board of Directors can only appoint Alternate Directors,
when they are authorized by the Articles of Association or by
General Meeting.
- The Director must have been gone from the state for period of
more than 3 months, where generally the meetings of the Board take
place.
- The period of Alternate Director will end , when the original
Directors returns in the State and intimate the same to the
Company.
- If before return of the Original Director, his term expires,
than the term of Alternate Director, will automatically
expire.
- The original Director cannot nominate any person as its
alternate
43. Procedure- Alternate Director
- Alternate Director appointed will submit the following :
-
- Consent to act as Director u/s 264, in case public company
-
- Declaration of interest u/s 299 of the Act.
-
- Declaration of qualification u/s 274 (1)(g) of the Act
44. BY SHAREHOLDERS
- The shareholders can underSection 257of the Act subject to the
consent of the shareholders,appoint any person the Director of the
Company
45. Procedure
- TheDirector appointed will submit the following :
-
- Consent to act as Director u/s 264, in case public company
-
- Declaration of interest u/s 299 of the Act.
-
- Declaration of qualification u/s 274 (1)(g) of the Act
46. BY CENTRAL GOVERNMENT
- As per section 408 of the Act, the Central Government may
appoint such number of persons as the Company Law Board may, by
order in Writing, specify as being necessary to effectively
safeguard the interests of the company, or its shareholders or the
public interests to hold office as directors thereof for such
period, not exceeding three years on anyone occasion.
- A person appointed by the Central Government shall hold office
as an additional director, shall not be required to hold any
qualification shares nor his period of office shall be liable to
determination by retirement of directors by rotation.
47. Filing of Form 32
- Appointment of Additional/ Casual / Alternate Director
- Regularization of Additional Director in Annual General
Meeting
- Appointment of Director in Extraordinary General Meeting
- Appointment of Director as MD/ WTD file Form 32 as change in
Designation
- Appointment of Director as Additional Director and Managing
Director separately and regularization of Managing Director in AGM
File form 32 Separately for appointment as AD and MD and no form 32
is required for regularization
48. Filing of Form 32
- No Director can sign form 32 unless his DIN 3 has been filed or
he has been appointed after 1 StJuly, 2007.
- A single form 32 can be filed for two or more appointment
/cessation, if the interval between the same is not more than 30
days.
- The appointed Director cannot file his own form 32.
49. Change in Directorship 50. Change in Directorship-
Resignation
- A non-executive Director can vacate his office by giving
resignation to the Board of Directors , its acceptance by the Board
is not necessary
- A executive Director can vacate his office subject to the terms
and conditions of his appointmentand in the absence of the same, he
is required to submit his resignation to the Board of Director and
acceptance of the same by the Board is must for their vacation
51. Change in Directorship- Removal
- TheCompany can remove any Director u/s 284 of the Act by
passing an ordinary resolution in the general meeting .
- The provisions of section shall not apply to the:
-
- Directors appointed by Central Government u/s 408 of
theAct.
-
- Directors appointed under section 265 of the Act.
-
- In case of private company, Directors holding life on 1stApril
1952.
52. Procedure- Removal
- Any shareholderintending to remove any Director, is required to
give a special notice of the same.
- Hold a Board meeting to convene a general meeting of
shareholders.
- On receipt of the notice as aforesaid, the Company shall
forthwith send copy of the same to the Director concerned , to
enable him to make the necessary representation.
- The copies of the representation, if any received from the
Director must be sent to all the members either along with notice
calling the meeting or independently.
53. Procedure- Removal
- Convene the general meeting
- In case the representation whether due to default or delay has
not been sent to themembers, the representation will be read out at
the meeting.
- Pass the ordinary resolution for his removal.
- The vacancy created by his removal can filed:
-
- At meeting in which he was removed , provided special notice of
appointment has also been given
-
- As causal vacancy u/s 262 of the Act.
- File form 32 within 30 days of his removal
54. Change in Directorship- Vacation
- Section 283 of the Act, prescribes following 12 grounds for
automatic vacation of office of Director:
-
- he fails to obtain within the time specified in sub-section(1)
of section 270, or at any time thereafter ceases to hold, the share
qualification if any, required of him by the articles of the
company;
-
- he is found to be of unsound mind by a Court of competent
jurisdiction;
-
- he applies to be adjudicated an insolvent;
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- he is adjudged an insolvent;
-
- he is convicted by a Court of any offence involving moral
turpitude and sentenced in respect thereof to imprisonment for not
less than six months;
55. Change in Directorship- Vacation
-
-
- If he e fails to pay any call in respect of shares of the
company held by hill whether alone or jointly with others, within
six months from !II last date fixed for the payment of the call
[unless the Central Government has, by notification in the Official
Gazette, removed !II disqualification incurred by such
failure;
-
-
- he absents himself from three consecutive meetings of the Board
a directors, or from all meetings of the Board for a continuous
period of three months; whichever is longer, without obtaining
leave d absence from the Board;
-
-
- he (whether by himself or by any person for his benefit or on
his account), or any firm in which] he is a partner or any private
company of which he is a director, accepts a loan, or any guarantee
or security for a loan, from the company in contravention of
section 295;
56. Change in Directorship- Vacation
- he acts in contravention of section 299;
- he becomes disqualified by an order of Court under section
203
- he is removed in pursuance of section 284;
- having been appointed a director by virtue of his holding any
of or other employment in the company or as a nominee of of the
company, he ceases to hold such office other employment in the
company
57. Filing of Form 32
- Form 32 for cessation, can only be filed for Directors in
respect of whom Form DIN 3 has been filed or he has been appointed
after 1st July 2007 and the appointment of Form 32 has been
filed.
58. Filing of Form 32- Death of Director and has no DIN
- Please send an email to [email_address] furnishing following
details under heading 'Form 32 death case, No DIN'
-
-
- a) Name of the company (in which the individual was a
director)
-
-
- b) Name of the deceased Director
-
-
- d) Date of appointment as Director
-
-
- e) Date of filing of Form 32 for appointment
-
-
- f) Date of death (along with certified copy of death
certificateissued by competent authority)
-
-
- g) e-mail address of the company
- Upon receipt of email, MCA Helpdesk will check and consider the
information submitted and if found satisfactory, MCA Helpdesk will
intimate the status/ outcome of the ticket to the stakeholder. If
MCA Helpdesk needs additional information from the stakeholder, he
will send an email to the Company accordingly.
59. Filing of Form 32- Death of Director and has no DIN
contd..
- Upon receipt of approval email from MCA, stakeholder will be
required to file the form directly with the concerned ROC along
with - signed form 32, necessary attachments, and a copy of
approval e-mail and proof of payment of filing fee, with the
respective ROC office. Filing Fee will be paid through 'Pay
Miscellaneous Fee'option on MCA portal.
- ROC will process / approve the form, scan the physical form 32
along with its attachments and upload the same in the electronic
records of the company through 'On Demand Scanning' option.
- ROC will update the relevant records/ data of the company
accordingly.
60. SECTION 25 COMPANIES 61. Introduction
- Non-Profit Association is an organization
- Formed as a limited Company for promoting Commerce, Art,
Science, Religion, Charity.
- Apply its profits in promoting its objects.
- Prohibits payment of dividend to its members.
62. Regulatory Provision- Section 25
- Registered as a limited Company with or without the addition of
the word Limited or Private Limited.
- A license granted under this section may be revoked anytime by
the Central Government & on such revocation the body shall
cease to enjoy the exemption granted by this section.
- A company registered under this section could not alter its
objects without the prior approval of Central Government.
- If the name of abody registered under this section contains the
word Chambers of Commerce then upon revocation of license should
change its name to a name which does not contain these words.
63. Formation Of Section 25 Companies
- A license may be granted to a body under this section if it
satisfies all the three conditions as laid down in the
definition.
- A company already registered under the actmay be converted into
a Section 25 company if it satisfies all the regulations laid down
by the Central Government.
64. Procedure for Formation
- An application in Form 1A for name availability is required to
be made ROC
- After the availability of name is confirmed by the ROC, an
application to Regional Director in form24A is required to be made
along with following documents:
-
- Three printed or typed copies of the draft memorandum and
articles of association of the proposed Company;
-
- A declaration by the advocate of the Supreme Court or of a High
Court, an attorney or a pleader entitled to appear before a High
Court, a secretary, or a chartered accountant, in whole-time
practice in India that the memorandum and articles of association
have been drawn up in conformity with the provisions of the Act and
that all the requirements of the Act and the rules made thereunder
have been duly complied with in respect of registration and matters
incidental or supplementary thereto ;
65. Procedure for Formation
- Three copies of a list of the names, descriptions, addresses
and occupations of the promoters (and where a firm is a promoter,
of each partner in the firm), as well as of the members of the
proposed Board of directors, together with the name of companies,
associations and other institutions in which such promoters,
partners and members of the proposed Board of directors are
directors or hold responsible positions, if any with descriptions
of the positions so held ;
- A statement showing in detail the assets (with the estimated
values thereof) and the liabilities of the association, as on the
date of the application or within seven days of that date ;
- An estimate of the future annual income and expenditure of the
proposed Company, specifying the sources of the income and the
objects of the expenditure ;
- A statement giving a brief description of the work, if any,
already done by the association and of the work proposed to be done
by it after registration in pursuance of section 25 ;
66. Procedure for Formation
- Astatement specifying briefly the grounds on which the
application is made ; and
- A declaration by each of the persons making the application in
the prescribed form to the Companies Regulations, or in a form as
near thereto as circumstances admit.
- A fee of Rs. 100 by a demand draft drawn in favour of the Pay
and Accounts Officer should be sent along with the application or
the fee should be paid in the respective account of the Central
Government in anyone of the specified branches of Punjab National
Bank.
- Furnish copy of the application to ROC along with necessary
documents.
- Publish a notice in as set out in annex II of the Companies
Regulations , in an English newspaper and in a vernacular newspaper
circulating in the district where the registered office of the
Company will be located
67. Procedure for Formation
- The ROC will scrutinize the draft memorandum and articles of
association and other papers sent with the application in order to
ensure that the documents conform to the various provisions of the
Act and the rules. If any change should be made in the memorandum
and articles of association, the ROC indicates them in his report
to the regional director.
- The regional director will decide, after considering the
objections, if any, received within the time fixed therefore in the
notice published in the newspapers, whether the licence should be
granted under section 25.
- While granting the licence, the regional director may direct
the Company to insert in its memorandum or in its articles such
conditions of the licence as may be specified by him.
68. Procedure for Formation
- The license should be produced to the ROC. The Registrar will
thereupon incorporate the Company. No stamp duty is payable for the
memorandum of association of the Company. Likewise, no stamp duty
is payable on the articles of association of this Company. The
registration fee payable for registering the Company is Rs. 50
irrespective of its capital, if any. After examining all these
documents, the ROC will incorporate the Company and issue the
certificate of incorporation.
69. Key Points..
- The Memorandum & Article ofAssociation shall not contain
the following:
-
- Any clause relating to payment of salary to any Director apart
from office bearers.
70. CHARGES 71. Introduction
- Companies generally borrow money by charging
theirproperties.
- In order to protect the interest of creditors, particulars of
the charge, together with a duly verified copy of instrument
creating the charge are required to be filed with the Registrar of
Companies for registration.
- The expression charge includes a mortgage.
72. Regulatory Provision-section 125
- As per section 125 of the Act, following charges , if not
registered shall becomes void against the liquidator:
-
- Charge for the purpose of securing any issue of
debentures.
-
- Charge on uncalled Share Capital of the company
-
- Charge on any immovable property or any interest therein.
-
- Charge on book debts of the company.
-
- Charge not being a pledge on any movable property of the
Company.
-
- a floating charge on the undertaking or any property of the
Company including stock in trade.
-
- Charge on calls made but not paid.
-
- Charge on Ship or any share in a ship.
-
- A charge on goodwill , on a patent or a licence under a patent,
on a trademark, or on a copyright or a licence under a
copyright.
73. Regulatory Provision-section 125
- The registration of charge shall be created within 30 days of
its creation subject to additional period of 30 days on payment of
additional fees. The Central Government had vide circular no 13 of
2007 dated 27/09/2007 has extended the period of registration of
charge to 300 days but the said circular was withdrawn vide
notification no 8/2/2007 CL-V dated 01/07/2008
74. Procedure -Charge Registration
-
- to approve the instrument creating charge
-
- To authorize the Director to file form 8 with ROC
-
- Create form 8 and get the same digitally signed by the Director
and Charge Holder and file the same.
-
- After registration of form 8 , the Certificate of Registration
of charge will be dispatched at the Registered office
-
- After registration of form 8, the registered Charge will be
allotted a Charge Identification Number.
75. Regulatory Provision-Section 135
- Whenever the terms or conditions, or the extent or operation,
of any charge registered under this Part are or is modified, it
shall be the duty of the company to send to the Registrar the
particulars of such modification, and the provisions of this Part
as to registration of a charge shall apply to such modification of
the charge.
76. Procedure -Charge Modification
-
- to approve the modification in the instrument creating
charge
-
- To authorize the Director to file form 8 with ROC
-
- Create form 8 and get the same digitally signed by the Director
and Charge Holder and file the same.
-
- After registration of form 8 , the Certificate of Registration
of modification in charge will be dispatched at the Registered
office
77. Key point.
- In case of registration of charge , if the size of agreement is
very large after scanning , file the same as addendum to the form
8
- In case of modification of charges registered with ROC before
the implementation of system, the form 8 for modification cannot
filed unless their Charge Identification Number has not been
created.
78. Regulatory Provision-Section 146
- The company shall give intimation to the Registrar of the
payment or satisfaction, in full, of any charge relating to the
company and requiring registration under this Part, within "thirty
days" from the date of such payment or satisfaction.
- The Registrar shall on receipt of such intimation, cause a
notice be sent to the holder of the charge calling upon him to show
cause within a time(not exceeding fourteen days) specified in such
notice, why payment or satisfaction should not be recorded as
intimated to the Registrar.
- If no cause is shown, the Registrar shall order that a
memorandum of satisfaction shall be entered in the register of
charges.
79. Procedure Charge Satisfaction
-
- to take note of the satisfaction of charge
-
- To authorize the Director to file form 17 with ROC
-
- Create form 17 attach the NOC given by the charge holder and
get the same digitally signed by the Director and Charge Holder and
file the same.
-
- After registration of form 17 , the Certificate of Registration
of satisfaction ofcharge will be dispatched at the Registered
office
80.