1.

Reservation of name of NewCo

[Not mandatory] [S. 4(4), (5), R.9]

• Submit application for reservation of name on RUN (Reserve Unique Name) platform on MCA portal
• Proposed name of the NewCo may either be approved or rejected, as the case may be, by RoC, Central Registration Centre
  • re-submission within 15 days allowed for rectification of the defects, if any,
• No need to file form or use DSC
• If approved, name of the proposed NewCo will be reserved for 20 days from the date of approval
  • If an application for reservation of name or change of its name by an existing Co➔RoC may reserve the name for 60 days from the date of approval

2.

Name of the NewCo

[S. 4(2), (3), R.8]

The name of the proposed NewCo should not -

• be identical with or resemble too nearly to the name of an existing Co; or
• be such that its use by the Co —
  • will constitute an offence under any law for the time being in force; or
  • is undesirable in the opinion of the CG
• contain any word or expression which is likely to give the impression that the Co is in any way connected with, or having the patronage of, the CG, any SG, or any local authority, corporation or body constituted by the CG or any SG under any law for the time being in force; or such word or expression, as may be prescribed, unless the previous approval of the CG has been obtained for the use of any such word or expression.

3.

Memorandum and Articles of Association of the NewCo

[S. 6, S. 7(1)(a), R.13]

• Provisions of Co Act 2013 as amended from time to time override MoA, AoA, etc. Any provision contained in the MoA, AoA, agreement or resolution shall, to the extent to which it is repugnant to the provisions of Co Act 2013, become or be void, as the case may be.
• MoA & AoA shall be duly signed by all the subscribers to the MoA in the prescribed manner:
  • signed by each subscriber
  • add his name, address, description and occupation, if any,
  • in the presence of at least 1 witness who shall attest the signature and shall likewise sign and add his name, address, description and occupation, if any, and
• If a subscriber is illiterate, he shall affix his thumb impression or mark which shall be described as such by the person, writing for him, who shall place the name of the subscriber against or below the mark and authenticate it by his own signature and he shall also write against the name of the subscriber, the number of shares taken by him. Such person shall also read and explain the contents of the MoA and AoA to the subscriber and make an endorsement to that effect on the MoA and AoA.

• If subscriber is a foreign national residing outside India:-

4.

Declaration by a practicing professional and by a first director/manager/secretary of the NewCo
[S. 7(1)(b), R.14]

Declaration by a practicing professional (advocate/CA/cost accountant/CS)who is engaged in the formation of the NewCo - that all the requirements of Co Act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with

(This forms part of the eForm itself, certified by the professional and hence no separate declaration required)

5.

²Declaration from each of the subscribers and first directors 
[S. 7(1)(c), R.15]

Declaration from each of the subscribers and first directors in Form No. INC 9, stating that he is not convicted of any offence in connection with the promotion, formation or management of any company, or that he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under Co Act or any previous company law during the preceding 5 years and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief

6.

Particulars of every subscriber along with proofs [S. 7(1)(e), R.16]

I. Particulars of every (individual) subscriber to be filed at the time of incorporation of NewCo:

(a) Name (including surname or family name) and recent Photograph affixed and scan with MOA and AOA; (b) Father’s/Mother’s/name; (c) Nationality; (d) Date of Birth; (e) Place of Birth (District and State); (f) Educational qualification; (g) Occupation; (h) Income-tax PAN;

(i) Permanent residential address and also Present address (Time since residing at present address and address of previous residence address (es) if stay of present address is < 1 year), Similarly the office/business addresses; (j) Email id of Subscriber; (k) Phone No. of Subscriber; (l) Fax no. of Subscriber (optional)

Information related to (i) to (l) shall be of the individual subscriber and not of the professional engaged in the incorporation of the NewCo;

(m) Documents

(p) If the subscriber is already a director or promoter of a company(s), the particulars relating to-

1. Name of the company;
2. Corporate Identity Number;
3. Whether interested as a director or promoter;

II. Particulars of every (body corporate) subscriber to be filed at the time of incorporation of NewCo:

(a) CIN or Registration number of the body corporate, if any; (b) GLN, if any; (c) the name of the body corporate; (d) the registered office address or principal place of business; (e) E-mail Id;

(h) the subscribers’ particulars as specified at I. above for the person subscribing for body corporate;

(i) in case of foreign bodies corporate, the details/documents relating to-

• the copy of its certificate of incorporation; and
• the registered office address.

7.

Particulars of each of the first directors

[S. 7(1)(f), (g), R.17]

Particulars of each of the first directors of NewCo, his interest in other firms or bodies corporate along with his consent to act as director of NewCo

8.

Registered office address

[S. 7(1)(d), S. 12, R.25, R. 38(7),(8)]

• In case, correspondence address of the proposed NewCo given in Form No. INC-32 (SPICe) is its registered office ➔ no need to separately file Form No. INC-22.
• For verification of the registered office pursuant to R. 25(2) any of the following documents be attached to Form No. INC-32 (SPICe) at the time of incorporation:-
  • the registered document of the title of the premises of the registered office in the name of the Co ; OR the notarized copy of lease or rent agreementin the name of the Co along with a copy of rent paid receipt not older than 1 month;
  • the authorization from the owner or authorized occupant of the premises along with proof of ownership or occupancy authorization, to use the premises by the Co as its registered office; and
  • the proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, as the case may be, which is not older than 2 months.

9.

Registration/approval from other sectoral regulators

[Proviso to R. 12]

In case pursuing of any of the objects of NewCo requires registration/approval from sectoral regulators such as RBI, SEBI, registration or approval, as the case may be, from such regulator shall be obtained by the proposed NewCo before pursuing such objects and a declaration in this behalf shall be submitted at the stage of incorporation of NewCo.

10.

Permanent Account Number (PAN) and Tax Deduction Account Number (TAN) etc.

• It is mandatory to apply for PAN and TAN in the application for incorporation of a NewCo in Form No. INC-32 (SPICe).
• Application for Employer registration under ESIC, Provident Fund, Importer Exporter code, ESI can also be made in the application Form No. INC-32 (SPICe) for incorporation, if so desired.

11.

Simplified Proforma for Incorporating Company Electronically (SPICe)

[R. 38]

• Filings in respect of incorporation of a NewCo:

• Application for allotment of DIN up to 3 Directors, reservation of a name, incorporation of NewCo and appointment of Directors of the proposed OPC, Private Co, Public Co and a S. 8 Co are clubbed in Form No. INC-32 (SPICe).
• No registration fees payable in respect of Form No. INC-32 (SPICe) in respect of incorporation of NewCo:
  • with nominal capital of < ³ ₹ 15 lakhs; or
  • not having a share capital whose number of members as stated in its AoA does not > 20
• RoC may give 2 chances of resubmission for further information or remove defects or incompleteness, each of 15 days from the date of intimation, not >30 days in aggregate.
• The Certificate of Incorporation of NewCo shall be issued by RoC in Form 
  No. INC-11 inter alia mentioning CIN, PAN & TAN of the NewCo.

12.

Additional requirement for incorporation of a S. 8 Co with Charitable objects, etc. [R. 19]

• Application by promoters for license u/s. 8 in Form No. INC.12
• Draft MoA (in Form No. INC.13) and AoA
• Declaration in Form No. INC.14 by an Advocate or practicing CA/CS/Cost Accountant
• Estimated future annual income and expenditure for next 3 years specifying sources of income and objects of the expenditure
• Declaration by each of the promoters in Form No. INC.15

⁴Effective 15-Aug-2019, Application by promoters for license u/s. 8 at the time of incorporation will also form part of Form INC-32 (SPICe) which is the form for incorporation. Accordingly final executed MoA and AoA are required to be attached to Form INC-32 (SPICe) as against draft MoA & AoA in Form No.INC.12 at present.

Application for license u/s. 8 by existing Cos u/R. 20 will continue to be made in Form No. INC.12.

13.

OPC [R.4]

• prior written consent of a nominee of the Subscriber in Form No. INC-3
  • Nominee: who shall, in the event of the subscriber’s death or his incapacity to contract, become the member of that OPC

14.

⁵Commencement of business etc[R.10A]

• A Co incorporated on or after 2-Nov-2018 and having share capital shall not commence any business or exercise any borrowing power unless :
  • a declaration is filed by a director within 180 days of the date of incorporation of the Co, with RoC that every subscriber to the MoA has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and
  • the Co has filed with the RoC a verification of its registered office as provided in S.12(2).