Rule 11. Model Articles

A company may choose to adopt the model articles of association as provided under Table F, G, H, I, or J of Schedule I.
This can be done based on the type of company that needs to be incorporated.
1. Table F - Model Articles for a Company Limited by Shares (Mostly used by private and public limited companies).
2. Table G - Model Articles for a Company Limited by Guarantee and Having a Share Capital.
3. Table H - Model Articles for a Company Limited by Guarantee and Not Having a Share Capital.
4. Table I - Model Articles for an Unlimited Company with a Share Capital.
5. Table J - Model Articles for an Unlimited Company without a Share Capital.
These model articles can be adopted either completely or with modifications.

Rule 12. Application for Incorporation of Companies

An application to incorporate a company must be filed with the Registrar of Companies (ROC).
This ROC must have jurisdiction over the place where the proposed registered office of the company will be situated.
Previously, incorporation was done through separate forms:
1. Form INC-2 for incorporating a One Person Company (OPC).
2. Form INC-7 for incorporating all other types of companies.
3. These forms were filed along with the prescribed fee under the Companies (Registration Offices and Fees) Rules, 2014.
These earlier forms (INC-2 and INC-7) have now been omitted.
Currently, all types of companies must be incorporated using the SPICe+ (INC-32) form.
SPICe+ is an integrated digital form that provides multiple services in a single application, including:
1. Name reservation
2. Company incorporation
3. Allotment of PAN
4. Allotment of TAN
5. Allotment of GSTIN (optional)
6. Allotment of EPFO and ESIC numbers
7. Opening of a bank account
8. Professional tax registration (in applicable states)

Rule 13. Signing of Memorandum and Articles

1.

The Memorandum of Association (MOA) and Articles of Association (AOA) must be signed by each subscriber.
Each subscriber must sign in the presence of at least one witness.
Every subscriber must clearly mention their:
1. Name
2. Address
3. Description
4. Occupation, if any
The witness must attest the signature of each subscriber.
The witness must also record their own:
1. Name
2. Address
3. Description
4. Occupation
The witness must make the following declaration:

“I witness to the subscriber/subscribers who has/have subscribed and signed in my presence (date and place to be given); further, I have verified his/their Identity Details (ID) for identification and satisfied myself of his/her/their identification particulars as filled in.”

2.

If a subscriber is illiterate, he or she may affix a thumb impression or mark instead of a signature. The person writing on behalf of the subscriber must:
1. Write the name of the subscriber near the thumb impression,
2. Authenticate it with his own signature, and
3. Indicate the number of shares subscribed by that person.

3.

The same person assisting the illiterate subscriber must also read and explain the contents of both the MOA and AOA to the subscriber.
After doing so, they must make an endorsement on both documents confirming that the subscriber has understood the contents.

4.

When the subscriber is a body corporate, the MOA and AOA must be signed on its behalf by a:
1. Director, or Officer, or Employee who has been duly authorized through a board resolution.
When the subscriber is a Limited Liability Partnership (LLP), the MOA and AOA must be signed by a partner.
The partner must be authorized through a resolution approved by all partners of the LLP.
If a person is signing the MOA and AOA on behalf of a body corporate or an LLP as its authorized representative, then:
1. That same person cannot also sign the MOA and AOA as an individual subscriber for themselves at the same time.

5.

If the subscriber is a foreign national residing outside India, different authentication requirements apply depending on the subscriber’s country of residence:
(a) If the subscriber is in a Commonwealth country, their signature, address, and proof of identity must be notarized by a Notary Public in that country.
(b) If the subscriber is in a country that is a party to the Hague Apostille Convention, 1961, their documents must be notarized before a Notary Public and then
apostilled as per the Convention’s procedure.
(c) If the subscriber is in a non-Commonwealth country that is not a party to the Hague Apostille Convention, their documents must be notarized before a Notary Public in that country.
1. The notary’s certificate must then be authenticated by a Diplomatic or Consular Officer under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.
2. If there is no such officer available, the authentication may be done by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889, or by an official under any Act amending that law.
(d) If a foreign subscriber visits India and wishes to incorporate a company during their visit, incorporation is allowed only if they hold a valid Business Visa.

Explanation

If the person is of Indian Origin or an Overseas Citizen of India (OCI), the requirement of a Business Visa does not apply.

Rule 14. Declaration by Professionals
For compliance with section 7(1)(b) of the Companies Act, a declaration must be made by a professional namely, an Advocate, Chartered Accountant, Cost Accountant, or Company Secretary in practice stating that all requirements of the Act and the rules made thereunder have been duly complied with for incorporation.
1. This declaration is to be filed in Form INC-8, which confirms that all the documents filed with the Registrar are true and correct to the best of the professional’s knowledge.
2. The rule also clarifies who qualifies as each professional:
  1. “Chartered Accountant” refers to one as defined under section 2(1)(b) of the Chartered Accountants Act, 1949.
  2. “Cost Accountant” refers to one as defined under section 2(1)(b) of the Cost and Works Accountants Act, 1959.
  3. “Company Secretary” refers to one as defined under section 2(1)(c) of the Company Secretaries Act, 1980.

Note: Form INC-8 is still in use and it is now electronically within SPICe+ (INC-32) as a linked form during incorporation.

To access Form INC - 8: https://ca2013.com/wp-content/uploads/2015/07/INC-8.pdf

Rule 15. Declaration from Subscribers and First Directors

For compliance with section 7(1)(c), each subscriber to the Memorandum and each of the first directors named in the Articles must submit an affidavit confirming that:
1. They are not convicted of any offence related to company promotion, formation, or management.
2. They have not been found guilty of fraud, misfeasance, or breach of duty to any company during the preceding five years.
3. All documents filed with the Registrar are true and complete to the best of their knowledge.
This affidavit must be filed in Form INC-9.

Note: Form INC-9 is still in use and it is now electronically within SPICe+ (INC-32) as a linked form during incorporation.

To access Form INC - 9: https://ca2013.com/wp-content/uploads/2023/01/Form-INC-9.pdf

Rule 16. Particulars of Every Subscriber to be Filed with the Registrar at the Time of Incorporation

When the Subscriber is an Individual

(a) The subscriber’s full name and a recent photograph must be attached with the MOA and AOA.
(b) Father’s or mother’s name must be provided.
(c) Nationality must be mentioned.
(d) Date of birth must be given.
(e) Place of birth (district and state) must be stated.
(f) Educational qualification of the subscriber must be mentioned.
(g) The person’s occupation must be provided.
(h) PAN is mandatory for all Indian subscribers.
(i) Permanent and present residential address must be given, including how long the subscriber has stayed at the present address; if less than one year,
previous address(es) must also be given.
(j) Subscriber’s email ID must be provided.
(k) Subscriber’s phone number must be given.
(l) Fax number may be given (optional).
1. Explanation: All details in (i) to (l) must belong to the subscriber personally, not the professional (CS/CA/lawyer) who is helping with incorporation.
(m) Identity proof must be submitted:

Indians: PAN + any one (Voter ID/Passport/Driving Licence/Aadhaar).
Foreign nationals/NRIs: Passport only.
(n) Residential proof such as bank statement, electricity bill, or telephone/mobile bill (not older than 2 months) must be submitted.
(o) If the subscriber is a foreign national, a separate nationality proof must be given.
(p) If the subscriber is already a director or promoter in any company, details must be provided:
1. (i) Name of the company
2. (ii) CIN
3. (iii) Whether he is a director or promoter
(q) The subscriber must provide a specimen signature and recent photograph verified by a banker or notary using Form INC-10.
2. When the Body is a Corporate
(a) The company’s CIN or registration number must be provided.
(b) Global Location Number (GLN), if available, must be given.
(c) Name of the body corporate must be stated.
(d) Registered office address or principal place of business must be mentioned.
(e) Email ID of the company must be provided.
(f) If the subscriber is a company, a certified board resolution must be submitted authorizing:
1. Subscription to the MOA of the proposed company,
2. The number of shares it will subscribe,
3. The details of the authorized person (name, address, designation).
(g) If the subscriber is an LLP or partnership, a certified resolution by all partners must be submitted authorizing:
1. Subscription to the MOA,
2. The number of shares to be subscribed,
3. The partner authorized to act.
(h) The authorized person of the body corporate must also provide the same personal details as required for an individual subscriber under Section 7(1)(e) (name, address, ID proof, etc.).
(i) For foreign body corporates, the following must also be filed:
1. (i) Certificate of incorporation of the foreign company.
2. (ii) Registered office address.

Rule 17. Particulars of First Directors of the Company and Their Consent to Act as Such

The details of every person who is named in the Articles of Association as a first director must be filed with the Registrar.
This includes:
1. The director’s personal particulars,
2. Details of their interests in other firms or companies, and
3. Their written consent agreeing to act as a director.
4. All of this must be filed using Form DIR-12, along with the prescribed filing fee under the Companies (Registration Offices and Fees) Rules, 2014.

To Access DIR 12: https://ca2013.com/wp-content/uploads/2015/12/Form_DIR-12-02.12.2015.pdf

Rule 18. Certificate of Incorporation

After the Registrar verifies all documents and is satisfied that the company meets the requirements of incorporation, the Registrar issues the Certificate of Incorporation.
This certificate is issued in Form INC-11.

To Access Form INC-11: https://ca2013.com/wp-content/uploads/2015/07/INC-11.pdf

Rule 19. License under Section 8 for New Companies with Charitable Objects etc

1.

A person or group of persons who want to form a company under section 8 with limited liability but without using “Limited” or “Private Limited” in the name must first apply for a licence from the Registrar.

The application must be made in Form INC-12, and it must be filed along with the prescribed fee under the Companies (Registration Offices and Fees) Rules, 2014.
This licence is mandatory before the company can be incorporated as a Section 8 company.

2.

The Memorandum of Association of the proposed Section 8 company must be prepared strictly in Form INC-13.
This form contains the mandatory clauses for charitable/non-profit objects, restrictions on profit distribution, and application of income solely for the stated objects.

3.

The application in INC-12 must be filed along with the following documents:

3a.

A draft Memorandum (INC-13 format) and draft Articles of Association of the proposed company.
These documents must clearly state:
1. The charitable/non-profit objects.
2. The restrictions on use of income.
3. That profits will not be distributed.
4. Any other clauses required under Section 8 rules.

3b.

A declaration in Form INC-14 from a practising professional (Advocate/CA/Cost Accountant/Company Secretary).
This declaration certifies that:
1. The MOA and AOA comply with Section 8 and the rules.
2. All conditions of the Companies Act relating to Section 8 companies have been fulfilled.
3. The drafts are legally correct and compliant.

3c.

An estimated income and expenditure statement for the next three years, showing:
1. Sources of income (donations, grants, subscriptions, etc.).
2. Proposed expenditure items (charitable activities, programs, administration).
3. Justification that the company’s activities are genuinely charitable.

3d.

A declaration in Form INC-15 from each person making the application.
Each applicant must personally declare:
1. That the company will be run for charitable purposes.
2. That profits, if any, will not be distributed.
3. That they understand and accept the obligations of a Section 8 company.

To Access INC Form - 12: https://ca2013.com/wp-content/uploads/2015/07/INC-12.pdf

To Access INC Form - 13: https://ca2013.com/wp-content/uploads/2015/07/inc-13.pdf

To Access INC Form - 14: https://ca2013.com/wp-content/uploads/2015/07/inc-14.pdf

To Access INC Form - 15: https://ca2013.com/wp-content/uploads/2015/07/inc-15.pdf

Rule 20. License for Existing Companies

1.

A limited company already registered under the Companies Act (current or previous) that:
Has objects matching those under section 8(1)(a) (charitable, social welfare, etc.).
Has restrictions under section 8(1)(b) (no profit distribution).
Has prohibitions under section 8(1)(c) (income applied only to objects), and now wants to convert into a Section 8 company without using “Limited” or “Private Limited” in its name, must apply to the Registrar in Form INC-12, along with the prescribed fee, for a licence under section 8(5).

2.

The application in INC-12 must be accompanied by the following documents:

2a.

A copy of the company’s existing Memorandum and Articles of Association.

2b.

A declaration in Form INC-14 from a practicing Advocate/CA/Cost Accountant/Company Secretary confirming that:
1. The MOA & AOA comply with Section 8.
2. All requirements of the Act and Rules relating to Section 8 registration are fulfilled.
3. The documents have been drafted properly and in conformity with the law.

2c.

For each of the last two financial years (or one year, if the company has existed for only one year):
1. The financial statements.
2. The Board’s report.
3. The audit report.
4. These must be submitted so the Registrar can verify past activities.

2d.

A detailed statement of assets and liabilities, showing values, as on the date of application or within 30 days before that date.

2e.

A three-year projected income and expenditure statement, specifying:
1. Future income sources.
2. Proposed expenditure for charitable objects.

2f.

A certified copy of the Board Resolution or General Meeting resolution approving conversion into a Section 8 company.

2g.

A declaration in Form INC-15 by each person making the application, confirming that they understand and commit to Section 8 obligations.

3.

Within one week of filing the application with the Registrar, the company must publish a public notice (at its own expense).
A copy of the notice as published must be sent to the Registrar.
The notice must be in Form INC-26.

3a.

The notice must be published:
At least once in a vernacular newspaper (local language of the district of the registered office).
At least once in an English newspaper circulating in that district.

3b.

On the websites notified by the Central Government.

4.

The Registrar may ask the company to obtain approval or concurrence from any relevant authority, regulatory body, department, or Ministry of Central or State Government, depending on the nature of the company’s activities.

5.

The Registrar will consider:
Any objections received within 30 days of publication of the notice, and
Inputs from any authorities consulted.
After this, the Registrar will decide at his discretion whether to grant or refuse the licence.

6.

If approved, the licence is issued in Form INC-16 (for companies without “Private Limited”) or Form INC-17 (for companies dropping “Limited”).
The Registrar may add additional conditions to the licence if necessary.

7.