MCA Notifies Companies (Incorporation) fourth Amendment Rules, 2016
Earlier, an integrated process of incorporation of companies was introduced by the MCA using single Form INC-29 under the Companies Act, 2013. Now the MCA has further amended the Companies Incorporation Rules. MCA has notified the ‘Companies (Incorporation) fourth Amendment Rules, 2016 to introduce ‘Simplified Proforma for Incorporating Company Electronically (SPICE), i.e. Form No. INC-32 alongwith e-Memorandum of Association (eMOA) in Form No. INC-33 and e-Articles of Association (eAOA) in Form No. INC-34, besides few other changes in forms relating to incorporation. Main objectives of the amendments by MCA are to provide speedy incorporation related services within stipulated time frames, in line with international best practices. Key features/ implications of the amendments in incorporation Rules are as under:
1. Separate e-forms prescribed by MCA for MOA (INC-33) and AOA (INC-34)
Unlike procedure prevailing so far, MOA & AOA drafted in a word format will no longer be required to be attached with INC-29. Now separate e-filing of Memorandum of Association (MOA) in e-form INC-33 & Articles of Association (AOA) in e form INC-34 are required to be filed along with SPICe (INC-32)except inthe case of . Eventually, the MOA and AOA shall be digitally signed for e-filing with MCA by Subscribers and Witness unlike manual signing prevailing so far.
It may be noted that with this amendment, standard formats of e-Memorandum/ Articles of Association as per Companies Act, 2013 are in place which are to be adhered by all stakeholders uniformly.
2. Replacement of INC-29 with new eform INC-32 (SPICe):
MCA has substituted Form INC-29 with Form INC-32, which is more or less similar to it’s predecessor, except few minor changes relating to reporting requirements. MCA has branded this form as SPICe, which is quite simplified and completely digital form for the purpose of Company Incorporation.
3. Conversion procedure
Further, the MCA has prescribed procedure for conversion of a company limited by guarantee (other than those registered u/s 25 of Companies Act, 1956 or u/s 8 of Companies Act, 2013) into a company limited by shares.
MCA Notification dt. 1 Oct. 2016 reg. SPICe
G.S.R. 936(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) fourth Amendment Rules, 2016. (2) Save as otherwise provided, these rules shall come into force on the date of their publication in the Official Gazette*.
2. In the Companies (Incorporation) Rules, 2014 (hereinafter referred to as the principal rules), in rule 33, for sub-rule (2), the following shall be substituted, namely:-
“(2) subject to the provision of sub-rule (1), for effecting the conversion of a public company into a private company, a copy of order of the Tribunal approving the alteration, shall be filed with the Registrar in Form No.INC-27 with fee together with the printed copy of altered articles within fifteen days from the date of receipt of the order from the Tribunal”.
3. In the principal rules, after rule 37, the following rule shall be inserted, with effect from 2nd October 2016, namely:-
“38. Simplified Proforma for Incorporating Company Electronically (SPICE)
(1) The simplified integrated process for incorporation of a company in Form No. INC-32 alongwith e-Memorandum of Association in Form No. INC-33 and e-Articles of Association in Form No. INC-34.
(2) The provisions of sub-rule (2) to sub-rule (13) of rule 36 shall apply mutatis mutandis for incorporation under this rule.
Provided that for the purposes of references to form numbers INC-29, INC-30 and INC-31 in rule 36 with Form No. INC-32, Form no. INC-33 and Form No. INC-34 shall be substituted respectively.
4. In the principal rules, after rule 38 as so inserted these rules, the following rule shall be inserted with effect from 1st November, 2016, namely:-
“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 is passed by its members authorising such a conversion omitting the guarantee clause in its Memorandum of Association and altering the Articles of Association to provide for the articles as are applicable for a company limited by shares.
(4) A copy of the special resolution shall be filed with the Registrar of Companies in Form no. MGT- 14 within thirty days from the date of passing of the same along with fee as prescribed in the Companies (Registration Offices and Fees) Rules, 2014.
(5) An application in Form No. INC-27 shall be filed with the Registrar of Companies within thirty days from date of the passing of the special resolution enclosing the altered Memorandum of Association and altered Articles of Association and a list of members with the number of shares held aggregating to a minimum paid up capital which is equivalent to the amount of guarantee hither to provided by its members.
(6) The Registrar of Companies shall take a decision on the application filed under these rules within thirty days from the date of receipt of application complete in all respects and upon approval of Form No. INC-27, the company shall be issued with a certificate of incorporation in Form No. INC-11B.”
5. In the principle rules, after the Form No. INC-11A, the following form shall be inserted, namely:-
Form No. INC-11B
Certificate of Incorporation pursuant to conversion of a company limited by guarantee into a company limited by shares
[Pursuant to section 18 of the Companies Act, 2013 read with rule 39 of the Companies (Incorporation) Rules, 2014]
(for remaining portion of Form INC 11B, please refer attachment)
6. In the principle rules for Form No. INC-27, the following form shall be substituted, namely:-
FORM NO. INC-27
Conversion of public company into private company or private company into public company and Conversion of Unlimited Liability Company into a Company Limited by shares or guarantee or conversion of guarantee company into a company limited by shares
[Pursuant to sections 14 and 18 of the Companies Act, 2013 and Rule 33, Rule 37 and Rule 39 made there under of the Companies Rules, 2013]
(for remaining portion of Form INC 27, please refer attachment)
7. in the principle rules, after Form no. INC-31, the following shall be inserted, namely:-
FORM NO. INC-32
Simplified Proforma for Incorporating Company Electronically
[Pursuant to sections 4, 7, 12, 152 and 153 of the Companies Act, 2013 read with rules made thereunder]
(for remaining portion of Form INC 32, please refer attachment)
FORM NO. INC-33
e-Memorandum of Association
[Pursuant to Schedule I (see sections 4 and 5) to the Companies Act, 2013]
(for remaining portion of Form INC 33, please refer attachment)
FORM NO. INC-34
e-Articles of Association
[Pursuant to Schedule I (see Sections 4 and 5) to the Companies Act, 2013]
(for remaining portion of Form INC 34, please refer attachment)
Note: The principal notification was published in the Gazette of India, Extraordinary Part II, Section 3, Subsection (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) 01-05-2015 2. G.S.R. 442 (E) 29-05-2015 3. G.S.R. 99 (E) 22-01-2016 4. G.S.R.336(E) 23-03-2016 5. G.S.R.743(E) 27-07-2016.
* Date of Publication in Official gazette is 1 Oct. 2016.
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