Companies (Incorporation) 5th Amendment Rules 2016 notified by MCA

MCA Notification on ‘Companies (Incorporation) Fifth Amendment Rules 2016’

The MCA has notified the “Companies (Incorporation) Fifth Amendment Rules, 2016” applicable from 1 Jan. 2017 to make further amendments in Incorporation Rules. MCA has already introduced integrated process of incorporation of companies, SPICe, eMOA, eAOA, etc. for speedy incorporation related services within stipulated time frames.

Companies (Incorporation) Fifth Amendment Rules 2016 MCA Notification dt. 29 Dec. 2016

G.S.R….. (E)– In exercise of the powers conferred by sub-sections (1) and (2) of section 469 of the Companies Act. 2013 (18 of 2013). the Central Government hereby makes the following rules further to amend the Companies (Incorporation) Rules, 2014 namely:

1. (1) These rules may be called the Companies (Incorporation) Fifth Amendment Rules. 2016. (2) They shall come into force on the 1st day of January, 2017.

2. In the Companies (Incorporation) Rules. 2014 (hereinafter referred to as the principal rules).

3. In the principal rules.

(a) in rule 4, in sub-rule (2), for the words and figures ‘such nomination in Form No.INC-2 along with consent of such nominee obtained in Form No.INC-3’ the words and figures ‘such nomination in Form No. INC-32 (SPICe) along with consent of such nominee obtained in Form No. INC-3’ shall be substituted.

(b) in rule 10, for the words and figures ‘Form No. INC-7’ the words and figures ‘Form No.INC-7 or Form No. INC-32(SPICe)’ shall be substituted.

(c) in rule 12, for the words and figures ‘Form No. INC-2 (for One Person Company) and Form No. INC-7 (other than One Person Company)’ the words and figures ‘Form No. INC-7 (Part I company and company with more than seven subscribers) and Form No. INC-32 (SPICe)’ shall be substituted.

(d) rule 36 shall be omitted-

(e) for rule 38, the following rule shall be substituted, namely:-

“38. Simplified Proforma for Incorporating Company Electronically (SPICe).-

(1) The application for incorporation of a company under this rule shall be in FORM No. INC-32 (SPICe) alongwith e-Memorandum of Association (e-MOA) in Form No. INC-33 and e-Articles of Association (e-AOA) in Form no. INC-34.

Provided that in case of incorporation of a company falling under section 8 of the Act, FORM No.INC-32 (SPICe) shall be filed along with FORM No. INC-13 (Memorandum of Association) and FORM No. INC-31 (Articles of Association) as attachments.

(2) For the purposes of sub-rule (1), the application for allotment of Director Identification Number upto three Directors, reservation of a name, incorporation of company and appointment of Directors of the proposed for One Person Company, private company, public company and a company falling under section 8 of the Act, shall be filed in FORM No. INC-32 (SPICe), with the Registrar, within whose jurisdiction the registered office of the company is proposed to be situated along with the fee of rupees five hundred in addition to the registration fee as specified in the Companies (Registration of Offices and Fees) Rules, 2014:

Provided that where an applicant has applied for reservation of a name under Rule 9 and which has been approved therein, he may fill the reserved name as proposed name of the company.

(3) For the purposes of filing SPlCe Form. the particulars of maximum of three directors shall be allowed to be filled in FORM No. INC-32 (SPICe) and allotment of Director Identification Number of maximum of three proposed directors shall be permitted in FORM No. INC-32 (SPICe) in case of proposed directors not having approved Director Identification Number.

(4) The promoter or applicant of the proposed company shall propose only one name in FORM No. INC-32 (SPICe).

(5) The promoter or applicant of the proposed company shall prepare Memorandum of Association (e-MoA) in FORM No. INC-33 and Articles of Association (e-AoA) in FORM No. INC-34, in accordance with rule 13.

Provided that the subscribers and witness or witnesses shall affix their digital signatures to the e-MoA and e-AoA.

(6) For incorporation using application as provided in this rule. provisions of the sub-clause (i) of sub-section (5) of section 4 of the Act. rule 9. and clause (a) of sub-rule (1) of rule 16 to the extent of affixing recent photograph shall not apply.

(7) A company using the provisions of this rule may furnish verification of its registered office under sub-section (2) of section 12 of the Act by filing FORM No. INC-32 (SPICe) in which case the company shall attach along with such FORM No. INC-32 (SPICe), any of the documents referred to in sub-rule (2) of rule 25.

(8) FORM No. INC-22 shall not be required to be filed in case the proposed company maintains its registered office at the given correspondence address.

(9) (a) Where the Registrar, on examining FORM No. INC-32 (SPICe), finds that it is necessary to call for further information or finds such application or document to be defective or incomplete in any respect, he shall give intimation to the applicant to remove the defects and re-submit the e-form within fifteen days from the date of such intimation given by the Registrar.

(b) After the resubmission of the document. if the registrar still finds that the document is defective or incomplete in any respect, he shall give one more opportunity of fifteen days to remove such defects or deficiencies.

Provided that the total period for resubmission of documents shall not exceed thirty days.

(10) The Certificate of Incorporation of company shall be issued by the Registrar in Form No. INC-11.”.

4. In the principal rules:

(a) Form No. INC-2 shall be omitted;

(b) for Form No. INC-7 the following form shall be substituted. namely:- (please refer attachment for revised format of Form No. INC 7)

(c) in Form No. INC-11. for the words and figures ‘rule 8 the Companies (Incorporation) Rules. 2014’, the words and figures ‘rule 8 of the Companies (Incorporation) Rules, 2014’ shall be substituted;

(d) For Form No. INC-27, the following form shall be substituted. namely:- (please refer attachment for revised format of Form No. INC 27)

e) FORM no. INC-29 shall be omitted.

Note: The principal notification was published in the Gazette of India, Extraordinary Part II, Section 3, Sub-section (i) vide number G.S.R. 250(E) dated 31st March, 2014 and subsequently amended vide the following notifications:-

1. G.S.R 349 (E) dt. 01-05-2015; 2. G.S.R 442 (E) dt. 29-05-2015; 3. G.S.R 99 (E) dt. 22-01-2016; 4. G.S.R 336 (E) dt. 23-03-2016; 5. G.S.R 743 (E) dt. 27-07-2016; 6. G.S.R 936 (E) dt. 01-10-2016

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