Incorporation Rules (Rule 31-41)
Rule 31. Certified Copy of Central Government's Order
When the Central Government approves the alteration of a company’s Memorandum of Association for shifting its registered office from one State to another, the company must follow this compliance:
A certified copy of the Central Government’s order approving the change of registered office must be filed with the Registrar of Companies (RoC) of the State to which the registered office is being transferred.
This filing must be made in Form INC-28, along with the prescribed fee.
The form and the certified copy must be filed within thirty days from the date on which the company receives the certified copy of the order.
To Access Form INC-28: https://ca2013.com/wp-content/uploads/2015/12/Form_INC-28-09-12-2015.pdf
Rule 32. Change of Objects for Which Money is Raised Through Prospectus
1.
If a company has raised funds from the public through a prospectus and still has any unutilised amount, it cannot change the objects for which the money was raised unless it passes a special resolution through postal ballot.
The notice for this resolution must include the following details:
(a) Total money received.
(b) Total money utilised for the objects stated in the prospectus.
(c) Unutilised amount remaining from the funds raised.
(d) Details of the proposed alteration or change in the objects.
(e) Justification for the alteration or change.
(f) Amount proposed to be used for the new objects.
(g) Estimated financial impact of the proposed change on the company’s earnings and cash flows.
(h) Any other relevant information necessary for members to make an informed decision.
(i) The place from where any interested person may obtain a copy of the notice of the proposed resolution.
2.
An advertisement containing details of each such resolution must be published at the same time that postal ballot notices are dispatched to shareholders.
3.
The notice of the resolution must also be uploaded on the company’s website, if it has one.
To Access Form INC-27: https://ca2013.com/wp-content/uploads/2015/07/inc-27.pdf
Rule 33. Alteration of Articles
1.
To convert a private company into a public company or a public company into a private company, the company must file an application in Form INC-27, along with the prescribed fee.
2.
Once the competent authority approves the alteration of the articles, a copy of the approval order must be filed with the Registrar in Form INC-27, along with the printed copy of the altered articles.
This filing must be made within fifteen days from the date the company receives the order from the Central Government.
Explanation: For the purposes of this rule, the term “competent authority” refers to the Central Government.
Rule 33A. Allotment of a new name to the existing company under section 16(3) of the Act
1.
If a company does not comply with the Regional Director’s direction under Section 16(1) to change its name within three months, the company will automatically be allotted a new name without any further action required by the company.
The new name will consist of:
The letters “ORDNC” (Order of Regional Director Not Complied),
The year in which the direction was issued,
A serial number, and
The company’s existing CIN.
The Registrar will enter this new name in the register of companies and issue a fresh Certificate of Incorporation in Form INC-11C.
This automatic renaming does not apply if Form INC-24 (filed by the company for name change) is still pending disposal at the end of the three-month period unless the form is later rejected.
2.
A company whose name has been changed under sub-rule (1) must immediately comply with Section 12 (Display and Publication of name).
Additionally, it must include the following statement below its name wherever the company’s name appears (printed, affixed, engraved, etc.):
“Order of Regional Director” Not Complied (under section 16 of the Companies Act, 2013)
This statement need not be displayed if the company subsequently changes its name in accordance with Section 13 of the Act.
To Access Form INC-24: https://ca2013.com/wp-content/uploads/2015/07/inc-24.pdf
Rule 34. Copies of Memorandum and Articles, etc. to be Given to Members on Request Being Made by Them
A company must provide copies of specified documents to any member who makes a request and pays the prescribed fee.
These documents must be sent within seven days of receiving the request.
The documents to be provided are:
The Memorandum of Association (MOA).
The Articles of Association (AOA).
Every agreement and every resolution referred to in Section 117(1), to the extent they are not already included in the memorandum or articles.
Rule 35. Service of Documents
1.
A company or its officers can receive documents electronically, not just by physical delivery.
2.
With respect to (1) “Electronic transmission” means sending documents through methods such as:
(a)
(i) Fax or email sent to the official number or email the company/officer has provided.
(ii) Posting the document on an official online portal or message board meant for such communication. Once posted, it is considered delivered.
(iii) Any other electronic method, as long as the company/officer has a system to check the sender’s identity.
(b)
The electronic method must create a copy that can be saved, accessed, read, and printed clearly.
3.
Documents may also be served electronically to the Registrar or to any member (shareholder).
4.
With respect to (3), “electronic transmission” has a similar meaning and includes:
(a)
(i) Fax or email sent to the Registrar’s or member’s given contact details.
(ii) Posting on an official electronic platform or portal designated for such communication.
(iii) Any other electronic method where the Registrar/member can verify the sender.
(b)
The method must produce a record that can be stored, accessed, read, and printed.
5.
For Section 20(1) and 20(2), “courier” means a service that provides proof of delivery (e.g., tracking, acknowledgement).
6.
Rules for sending by post:
(i) For meeting notices, service is considered complete 48 hours after posting.
(ii) For all other documents, service is considered complete when the letter would normally reach the recipient in the regular course of post.
Rule 36. Integrated Process for Incorporation - Omitted
Rule 37. Conversion of Unlimited Liability Company into a Limited Liability Company by Shares or Guarantee
1.
To convert an unlimited company into a limited company (shares or guarantee), the company must:
Pass a special resolution, and
File Form INC-27 as per (2) and (3) below.
2.
Within 7 days of passing the resolution, the company must:
Publish a notice (Form INC-27A) in two newspapers (English + vernacular), and
Upload the notice on its website (if available).
Send the notice to all creditors and debenture holders by RPAD/Speed Post/Courier (with proof).
The notice must clearly:
State the proposal for conversion,
Invite objections within 21 days to both ROC and the company,
Mention the objector’s interest and grounds of objection.
3.
Within 45 days of the resolution, the company must file Form INC-27, with the required fee and the following documents or declarations:
(a) Notice of the general meeting + explanatory statement.
(b) Certified copy of the special resolution.
(c) Copies of the newspaper publications.
(d) Altered e-MOA and e-AOA, certified by an authorised director/company secretary.
(e) Declaration (by two directors including MD, if any) stating conversion will not affect existing debts/obligations (only member liability becomes limited).
(f) List of creditors and debenture holders with:
(i) Names and addresses
(ii) Amounts dues
(iii) Director’s declaration confirming dispatch of notices with proof
(g) Declaration (two directors incl. MD) confirming :
Full enquiry into company affairs.
If the creditor list is correct.
Contingent liabilities are properly valued.
No other unknown debts exist.
(h) Declaration of solvency (two directors incl. MD) confirming the company will remain solvent for at least 1 year.
(i) Auditor’s certificate confirming that the company is solvent, and is a going concern.
A “going concern” means that the company is financially healthy and capable of continuing its business operations for the foreseeable future, usually considered at least the next 12 months.
(j) NOC from sectoral regulator (if applicable).
(k) NOC from secured creditors (if any).
4.
Declaration (two directors incl. MD) confirming:
No complaints from members/investors are pending,
No inquiry, inspection, or investigation is pending against the company/directors/officers.
5.
The ROC will review the application, consider any objections, ensure they are resolved, and then decide whether to approve the conversion.
6.
Once approved, the ROC will issue a new Certificate of Incorporation (Form INC-11A) reflecting the limited status.
7.
Conditions after conversion
The company cannot change its name for 1 year after conversion.
The company cannot declare or distribute dividends until all past debts/liabilities incurred before conversion are fully settled.
Explanation: Secured debts to banks/financial institutions are not included in “past debts”.
8.
Companies NOT eligible for conversion
Conversion is not allowed if:
(a) Net worth is negative.
(b) Striking-off application is pending.
(c) Annual returns or financial statements are in default.
(d) A winding-up petition is pending.
(e) Amounts due on calls from directors remain unpaid for 6+ months.
(f) Any inquiry/inspection/investigation is pending.
9.
ROC must decide on the application within 30 days after receiving a complete application.
To Access Form INC-27:https://ca2013.com/wp-content/uploads/2015/07/inc-27.pdf
To Access Form INC-27A: https://ca2013.com/wp-content/uploads/2016/07/INC-27A.pdf
Rule 38. Simplified Proforma for incorporating Company Electronically Plus (SPICe+)
1.
The application for incorporation under this rule must be submitted in SPICe+ (Form INC-32) together with the e-Memorandum of Association (e-MOA — Form INC-33) and e-Articles of Association (e-AOA — Form INC-34).
For Section 8 companies the SPICe+ filing must include INC-13 (MOA) and INC-31 (AOA) as pdf attachments (i.e., Section 8 companies attach the MOA/AOA instead of e-forms).
If the company has more than seven subscribers, or if any subscriber signs outside India, the MOA/AOA may be filed in the special formats (Tables A–J of Schedule I) with SPICe+ in place of INC-33 / INC-34 as specified.
2.
SPICe+ is an integrated e-form: it can be used to apply for:
(a) Name reservation (where applicable).
(b) Allotment of DIN for up to three proposed directors.
(c) Incorporation of the company.
(d) Appointment of directors - all in one application.
A small additional fee (₹500) is payable over and above the normal registration fee.
Companies incorporated on/after 26-Jan-2018 with nominal capital ≤ ₹15 lakhs, or companies without share capital whose membership does not exceed twenty, may be exempt from the INC-32 fee as specified in the rule.
3.
SPICe+ allows entry of particulars for a maximum of three directors and permits DIN allotment for up to three proposed directors (where DINs are not already allotted).
4.
The applicant/promoter may propose only one name in the SPICe+ application (i.e., single proposed name field).
5.
The promoter/applicant must prepare the e-MOA (INC-33) and e-AOA (INC-34) in the prescribed formats and the subscribers/witnesses must affix digital signatures to the e-MOA and e-AOA (where e-forms are used).
6.
SPICe+ removes some old physical formalities because the e-filing system already captures the needed information digitally.
7.
When incorporating through SPICe+, you can directly provide the registered office address proof (as required under Section 12(2)) by attaching any of the accepted documents listed in Rule 25(2) such as electricity bill, rent agreement, NOC, etc.
SPICe+ itself completes the registered office verification, so a separate INC-22 filing is avoided unless the correspondence address differs.
8.
Form INC-22 (separate documentary verification of registered office) is not required if the proposed company maintains its registered office at the given correspondence address in SPICe+.
9.
(a) If the Registrar finds the SPICe+ application defective or needing more information, the Registrar will ask the applicant to remove defects and re-submit
within 15 days.(b) If still defective after resubmission, the Registrar gives one more 15-day opportunity.
(c) Total time allowed for resubmission of documents shall not exceed 30 days.
10.
On successful compliance and verification, the Registrar issues the Certificate of Incorporation in Form INC-11.
To Access Form INC- 13: https://ca2013.com/returns/inc-13/
To Access Form INC- 31: https://ca2013.com/wp-content/uploads/2023/01/Form-INC-31.pdf
Note; For Section 8 company incorporation, the MOA (INC-13) and AOA (INC-31) documents must be physically signed and the signed PDF copies are required to be uploaded in SPICe+ Part B. This physical signing and uploading of signed documents is mandatory, and these cannot be digitally altered or submitted as just electronic forms (INC-33 and INC-34 are not applicable).
To Access Form INC-33: https://ca2013.com/wp-content/uploads/2016/10/inc-33.pdf
To Access Form INC-34: https://ca2013.com/wp-content/uploads/2023/01/Form-INC-34.pdf
Note: Since the forms INC-31 , INC-33 and INC-34 are already incorporated through the MCA Portal and it is a company stitched document , we are not attaching the form here , however you can always access them on the links provided above.
Rule 38A. Application for registration of GSTIN,ESIC,EPFO
The application for incorporation of a company under rule 38 shall be accompanied by e-Form AGILE-PRO-S (INC-35) containing an application for registration of the following, namely:
Goods and Services Tax Identification Number (GSTIN) with effect from 31st March 2019;
EPFO Registration - with effect from 8th April 2019;
ESIC Registration - with effect from 15th April 2019;
Profession Tax Registration - with effect from 23rd February 2020;
Opening of Bank Account - with effect from 23rd February 2020;
Shops and Establishment Registration - with effect from 23rd February 2020.
To Access Form-INC 35 (AGILE-PRO-S) - https://ca2013.com/wp-content/uploads/2021/06/Incorporation-rules-7-12.pdf
Rule 39. Conversion of a company limited by guarantee into a company limited by shares
1.
A company, other than a company registered under section 25 of the Companies Act, 1956 or section 8 of the Companies Act, 2013, may convert itself into a company limited by shares.
2.
The company seeking conversion shall have a share capital equivalent to the guarantee amount.
3.
A special resolution shall be passed by its members authorising such conversion, omitting the guarantee clause in its Memorandum of Association and altering the Articles of Association to provide the articles applicable to a company limited by shares.
4.
A copy of the special resolution shall be filed with the Registrar in Form MGT-14 within 30 days from the date of passing the resolution, along with the fee prescribed under the Companies (Registration Offices and Fees) Rules, 2014.
5.
An application in Form INC-27 shall be filed with the Registrar within 30 days from the date of passing the special resolution, along with the e-Memorandum of Association and altered e-Articles of Association, and a list of members with the number of shares held by each, aggregating to a minimum paid-up capital equivalent to the amount of guarantee previously provided by its members.
6.
The Registrar shall decide on the application within 30 days from the date of receipt of a complete application, and upon approval of Form INC-27, the company shall be issued a Certificate of Incorporation in Form INC-11B.
To Access Form 11B: https://ca2013.com/returns/form-no-inc-11b/
Rule 40. Application under sub-section (41) of section 2 for change in financial year
1.
The application for approval of the concerned Regional Director (RD) under section 2(41) shall be filed in e-Form RD-1, along with the prescribed fee under the Companies (Registration Offices and Fees) Rules, 2014.
The application shall be accompanied by the following documents:
(a) Grounds and reasons for seeking the change in financial year.
(b) A copy of the Board Meeting minutes in which the resolution authorising the change was passed, including details of votes cast for and against the
resolution.(c) Power of Attorney or Memorandum of Appearance, as applicable.
(d) Details of any previous application made within the last five years for change of financial year, its outcome, and a copy of that order.
2.
If, after examining the application, the Regional Director finds it necessary to seek additional information or finds the application defective or incomplete, he shall intimate the applicant by email.
The applicant must provide the required information or rectify the defects and re-submit the application within the allowed period.
(The omitted text from this sub-rule has been removed as per amendments.)A maximum of two re-submissions is permitted.
3.
(a) If the applicant does not furnish the additional information or fails to rectify the defects to the satisfaction of the RD within the permitted time, then:
The RD shall reject the application, with reasons, within 30 days from the date of filing or from the date of last re-submission.
(b) If the application is found complete and in order, the RD shall approve and convey the order within 30 days from the date of filing or last re-submission.
(c) If no order (approval, rejection, or re-submission) is issued by the RD within the stipulated 30-day period, the application shall be deemed approved, and the approval order shall be automatically issued.
4.
The order of the Regional Director shall be filed by the company with the Registrar of Companies in Form INC-28, within 30 days from receipt of the order, along with the prescribed fee.
Rule 41. Application under section 14 for conversion of public company into private company
1.
An application for converting a public company into a private company (under the second proviso to section 14(1)) must be filed with the Regional Director (RD) in e-Form RD-1 within 60 days from the date of passing the special resolution.
The application must include:
(a) e-MOA and e-AOA with the proposed alterations, including changes required under section 2(68).
(b) Minutes of the general meeting in which the special resolution was passed, including details of votes cast for/against and names of dissenters.
(c) A Board Resolution or Power of Attorney (dated not earlier than 30 days) authorising filing of the application.
(d) A declaration by a Key Managerial Personnel (KMP) stating:
The company limits its number of members to 200 as required under section 2(68).
No deposits have been accepted in violation of the Act and rules.
(e) A declaration by a KMP that the company has complied with sections 73 to 76A, 177, 178, 185, 186 and 188.
(f) A declaration by a KMP that no resolution under section 179(3) is pending to be filed, and that the company has never been listed on a stock exchange.
If it was listed previously, full SEBI-compliant delisting procedures were completed.
Provided that if the company is not required to appoint KMP, these declarations may be signed by any director.
2.
The application must also include the following particulars:
(a) Date of the Board Meeting approving the proposed alterations.
(b) Date of the General Meeting passing the special resolution.
(c) Reasons for conversion and its impact on shareholders, creditors, debenture holders, deposit holders and other stakeholders.
(d) Details of any prior conversion within the last five years, with a copy of the order.
(e) Whether the company is registered under section 8.
3.
The application must be accompanied by a list of creditors and debenture holders, drawn up not more than 30 days before filing, containing:
(a) Names and addresses of every creditor and debenture holder.
(b) Nature and amount of debts, claims or liabilities.
(c) Estimated value of contingent or unascertained debts.
An affidavit must also be filed, signed by the Company Secretary (if any) and two directors (one must be the Managing Director, if applicable), confirming:
Full enquiry into the company’s affairs has been made.
The list of creditors is correct.
The estimates of contingent/unascertained liabilities are proper.
There are no other debts or claims to the company’s knowledge.
4.
An authenticated copy of the creditors list must be kept at the registered office, open for inspection during business hours.
Anyone may inspect or take extracts upon payment of ₹10 per page.
5.
At least 21 days before filing the application, the company must:
(a) Advertise in Form INC-25A:
Once in the principal vernacular newspaper of the district.
Once in an English newspaper widely circulated in the State.
(b) Serve individual notice by registered post (AD) to each creditor and debenture holder;
(c) Serve notice (registered post AD) to the Regional Director, Registrar of Companies, and any sectoral regulator, if applicable.
6.
Processing of the application by the Regional Director
(a) If no objections are received and the application is complete, the RD may approve it without hearing, within 30 days of receipt.
(b) If the RD finds defects, incompleteness, or requires further information, he shall, within 30 days, intimate the applicant via email to correct or provide details and re-submit within 15 days.
A maximum of two re-submissions is permitted.
(c) If the applicant fails to provide the information or rectify defects within the allowed time, the RD shall reject the application, with reasons, within 30 days from the date of filing or last re-submission, as applicable.
To Access Form INC-25A: https://ca2013.com/wp-content/uploads/2018/12/INC-25A.pdf
