Companies Incorporation (Amendment) Rules
MCA with its notification dated 19th January 2023, amended the Companies Incorporation Rules. Such amendments were published in the Official Gazette of India G.S.R. 42(E) on 23rd January 2023.
With this notification, changes were made to the rules Rule 4, Rule 6, Rule 7, Rule 19, Rule 20, Rule 21, Rule 22, Rule 28, Rule 30, Rule 33, Rule 37, Rule 39, Rule 40 and Rule 41.
Along with these rules amendments were made to revise the forms Form INC-3 One Person Company-Nominee Consent Form, INC-14 Declaration, INC-15 Declaration and RD-GNL-5-Form for filing addendum for rectification of defects or incompleteness omitted, Revision to RUN, INC-4, INC-6, INC-9, INC-12, INC-13, INC-18, INC-20, INC-20A, INC-22, INC-23, INC-24, INC-27, INC-28, INC-31, SPICE+ (INC-32), INC-33, INC-34, INC-35 and RD-1.
Rule 4: Nomination by the subscriber or member of One Person Company.
| Old Rule | Changes |
| (2) The name of the person nominated under sub-rule (1) shall be mentioned in the memorandum of One Person Company and [such nomination in Form No. INC-32 (SPICe+) along with consent of such nominee obtained in Form No. INC-3] and fee as provided in the Companies (Registration offices and fees) Rules, 2014 shall be filed with the Registrar at the time of incorporation of the company along with its memorandum and articles. | No need to file Form No. INC-3, nomination details and consent is to be filed with Form No. INC-32 (SPICe+) |
| (3) The person nominated by the subscriber or member of a One Person Company may, withdraw his consent by giving a notice in writing to such sole member and to the One Person Company: Provided that the sole member shall nominate another person as nominee within fifteen days of the receipt of the notice of withdrawal and shall send an intimation of such nomination in writing to the Company, along with the written consent of such other person so nominated in Form No. INC.3. | Form No. INC-3 is substituted with Form no INC-4. |
| (4) he company shall within thirty days of receipt of the notice of withdrawal of consent under sub-rule (3) file with the Registrar, a notice of such withdrawal of consent and the intimation of the name of another person nominated by the sole member in Form No INC.4 along with fee as provided in the Companies (Registration offices and fees) Rules, 2014 and the written consent of such another person so nominated in Form No. INC.3. | Form No. INC-3 is substituted with Form no INC-4. |
| (5) The subscriber or member of a One Person Company may, by intimation in writing to the company, change the name of the person nominated by him at any time for any reason including in case of death or incapacity to contract of nominee and nominate another person after obtaining the prior consent of such another person in Form No INC.3: Provided that the company shall, on the receipt of such intimation, file with the Registrar, a notice of such change in Form No INC.4 along with fee as provided in the Companies (Registration offices and fees) Rules, 2014 and with the written consent of the new nominee in Form No.INC.3 within thrity days of receipt of intimation of the change. | Form No. INC-3 is substituted with Form no INC-4. |
| (6) Where the sole member of One Person Company ceases to be the member in the event of death or incapacity to contract and his nominee becomes the member of such One Person Company, such new member shall nominate within fifteen days of becoming member, a person who shall in the event of his death or his incapacity to contract become the member of such company, and the company shall file with the Registrar an intimation of such cessation and nomination in Form No INC.4 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 within thirty days of the change in membership and with the prior written consent of the person so nominated in Form No.INC.3. | Form No. INC-3 is substituted with Form no INC-4. |
Rule 6: Conversion of One Person Company into a Public company or a Private company.
| Old Rule | Changes |
| (3) The company shall file an application in e-Form No. INC-6 for its conversion into Private or Public Company, other than under section 8 of the Act, along with fees as provided in the Companies (Registration offices and fees) Rules, 2014 by attaching documents, namely: –
(a) Altered MOA and AOA; (b) copy of resolution; (c) the list of proposed members and its directors along with consent; (d) list of creditors; and (e) the latest audited balance sheet and profit and loss account.
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(3) The company shall file an application in e-Form No. INC-6 for its conversion into Private or Public Company, other than under section 8 of the Act, alongwith fees as provided in the Companies (Registration Offices and Fees) Rules, 2014 with altered e-MOA and e-AOA. |
| (4) On being satisfied that the requirements stated herein have been complied with, the Registrar shall approve the form and issue the Certificate. | (4) On being satisfied that the requirements have been complied with, the Registrar after examining the latest audited financial statement shall approve the form and issue certificate. |
Rule 7: Conversion of private company into One Person Company.
| Old Rule | Changes |
| (4) The company shall file an application in Form No.INC.6 for its conversion into One Person Company along with fees as provided in in the Companies (Registration offices and fees) Rules, 2014, by attaching the following documents, namely:-
(i) The directors of the company shall give a declaration by way of affidavit duly sworn in confirming that all members and creditors of the company have given their consent for conversion, [***]; (ii) the list of members and list of creditors; (iii) the latest Audited Balance Sheet and the Profit and Loss Account; and (iv) the copy of No Objection letter of secured creditors.
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(4) The company shall file an application in e-Form No. INC-6 for its conversion into One Person Company alongwith fees as provided in the Companies (Registration Offices and Fees) Rules, 2014 by attaching the following details or documents, namely:-
(i) altered e-MOA and e-AOA; (ii) copy of NOC of every creditors with the application for conversion; (iii) affidavit of directors confirming that all the members of the company have given their consent for conversion. |
| (5) On being satisfied and complied with requirements stated herein the Registrar shall issue the Certificate. | (5) On being satisfied that the requirements stated herein have been complied with, the Registrar after examining the latest audited financial statement shall approve the form and issue certificate. |
Rule 19: License under section 8 for new companies with charitable objects etc.
| Old Rule | Change |
| (3)(b) the declaration in Form No.INC.14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that [the memorandum] and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with | (3)(b) Declaration in Form No. INC-14 is not Required. |
| (3)(d) the declaration by each of the persons making the application in Form No. INC.15. | (3)(d) Declaration in Form No. INC-15 is not Required. |
Rule 20: License for existing companies.
| Old Rule | Change |
| (2)(a) the memorandum and articles of association of the company | (2)(a) the e-Memorandum of Association and e-Article of Association of the company |
| (2)(b) the declaration as given in Form No.INC.14 by an Advocate, a Chartered accountant, Cost Accountant or Company Secretary in Practice, that the memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with; | (2)(b) the declaration by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in Practice, that the memorandum and articles of association have been drawn up in conformity with the provisions of section 8 of the Act and rules made thereunder and that all the requirements of the Act and the rules made thereunder or supplemental thereto have been complied with; |
| (2)(c) For each of the two financial years immediately preceding the date of the application, or when the company has functioned only for one financial year, for such year (i) the financial statements, (ii) the Board’s reports, and (iii) the audit reports, relating to existing companies | (2)(c) a statement showing in detail the assets (with the values thereof), and the liabilities of the company, as on the date of the application or within thirty days preceding that date |
| (2)(d) a statement showing in detail the assets (with the values thereof), and the liabilities of the company, as on the date of the application or within thirty days preceding that date;
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(2)(d) the certified copy of the resolution passed in general or board meetings approving registration of the company under section 8 of the Act |
| (2)(e) an estimate of the future annual income and expenditure of the company for next three years, specifying the sources of the income and the objects of the expenditure;
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(2)(e) a declaration by each of the persons making the application. a declaration by each of the persons making the application. |
| (5) The Registrar shall, after considering the objections, if any, received by it within thirty days from the date of publication of notice, and after consulting any authority, regulatory body, Department or Ministry of the Central Government or the State Government(s), as it may, in its discretion, decide whether the license should or should not be granted | (5) The Registrar shall after considering two years financial statements immediately preceding the date of application or when the company has functioned only for one financial year, for such year including Board’s reports and audit reports, relating to the existing companies, and after considering objections, if any received by it within thirty days from the date of publication of notice, and after consulting any authority, regulatory body, Department or Ministry of Central Government or the State Government(s), as it may, in its discretion, decide whether the license should or should not be granted. |
Rule 21: Conditions for conversion of a company registered under Section 8 into a company of any other kind.
| Old Rule | Change |
| (4) A copy of the application with annexures as filed with the Regional Director shall also be filed with the Registrar. | (4) An intimation alongwith copy of the application with annexures as filed in Form no. INC.18 with the Regional Director shall also go to the Registrar through MCA system. |
Rule 22: Other conditions to be complied with by companies registered under section 8 seeking conversion into any other kind.
| Old Rule | Change |
| (6) The company shall attach with the application a certificate from practicing Chartered Accountant or Company Secretary in practice or Cost Accountant in practice certifying that the conditions laid down in the Act and these rules relating to conversion of a company registered under section 8 into any other kind of company, have been complied with. | (6) The company shall file the application with a declaration from practicing Chartered Accountant or Company Secretary in practice or Cost Accountant in practice certifying that the conditions laid down in the Act and these rules relating to conversion of a company registered under section 8 into any other kind of company, have been complied with |
| (10)(ii)(b) amended memorandum of association and articles of association of the company | (10)(ii)(b) amended e-Memorandum of Association and amended e-Article of Association of the company |
Rule 28: Shifting of registered office within the same State.
| Old Rule | Change |
| (1) An application seeking confirmation from the Regional Director for shifting the registered office within the same State from the jurisdiction of one Registrar of Companies to the jurisdiction of another Registrar of Companies, shall be filed by the company with the Regional Director in Form No. INC. 23 along with the fee and following documents, –
(a) Board Resolution for shifting of registered office; (b) Special Resolution of the members of the company approving the shifting of registered office; (c) a declaration given by the Key Managerial Personnel or any two directors authorised by the Board, that the company has not defaulted in payment of dues to its workmen and has either the consent of its creditors for the proposed shifting or has made necessary provision for the payment thereof; (d) a declaration not to seek change in the jurisdiction of the Court where cases for prosecution are pending; (e) acknowledged copy of intimation to the Chief Secretary of the State as to the proposed shifting and that the employees interest is not adversely affected consequent to proposed shifting.]
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(1) An application seeking confirmation from the Regional Director for shifting the registered office within the same State from the jurisdiction of one Registrar of Companies to the jurisdiction of another Registrar of Companies, shall be filed by the company with the Regional Director in Form No. INC. 23 along with the fee and following details and documents, –
(a) Board Resolution for shifting of registered office; (b) Special Resolution of the members of the company approving the shifting of registered office; (c) a declaration given by the Key Managerial Personnel or any two directors authorised by the Board, that the company has not defaulted in payment of dues to its workmen and has either the consent of its creditors for the proposed shifting or has made necessary provision for the payment thereof; (d) a declaration not to seek change in the jurisdiction of the Court where cases for prosecution are pending; (e) acknowledged copy of intimation to the Chief Secretary of the State as to the proposed shifting and that the employees interest is not adversely affected consequent to proposed shifting.]
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Rule 30: Shifting of registered office from one State or Union territory to another State.
| Old Rule | Change |
| (1) An application under sub-section (4) of section 13, for the purpose of seeking approval for alteration of memorandum with regard to the change of place of the registered office from one State Government or Union territory to another, shall be filed with the Central Government in Form No. INC.23 along with the fee and shall be accompanied by the following documents, namely: –
(a) a copy of Memorandum of Association, with proposed alterations; (b) a copy of the minutes of the general meeting at which the resolution authorising such alteration was passed, giving details of the number of votes cast in favour or against the resolution; (c) a copy of Board Resolution or Power of Attorney or the executed Vakalatnama, as the case may be.
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(1) An application under sub-section (4) of section 13, for the purpose of seeking approval for alteration of memorandum with regard to the change of place of the registered office from one State Government or Union territory to another, shall be filed with the Central Government in Form No. INC.23 along with the fee and shall be accompanied by the following details and documents, namely: –
(a) a copy of Memorandum of Association, with proposed alterations; (b) a copy of the minutes of the general meeting at which the resolution authorising such alteration was passed, giving details of the number of votes cast in favour or against the resolution; (c) a copy of Board Resolution or Power of Attorney or the executed Vakalatnama, as the case may be.
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| (2) There shall be attached to the application, a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than one month, setting forth the following details, namely:-
(a) the names and address of every creditor and debenture holder of the company; (b) the nature and respective amounts due to them in respect of debts, claims or liabilities: Provided that the list of creditors and debenture holders, accompanied by declaration signed by the Company Secretary of the company, if any, and not less than two directors of the company, one of whom shall be a managing director, where there is one, stating that (i) they have made a full enquiry into the affairs of the company and, having done so, have concluded that the list of creditors are correct, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the company to their knowledge, and (ii) no employee shall be retrenched as a consequence of shifting of the registered office from one state to another state and also there shall be an application filed by the company to the Chief Secretary of the concerned State Government or the Union territory.
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(2) There shall be particulars of, a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than one month, setting forth the following details in the application, namely:-
(a) the names and address of every creditor and debenture holder of the company; (b) the nature and respective amounts due to them in respect of debts, claims or liabilities: Provided that the list of creditors and debenture holders, accompanied by declaration signed by the Company Secretary of the company, if any, and not less than two directors of the company, one of whom shall be a managing director, where there is one, stating that (i) they have made a full enquiry into the affairs of the company and, having done so, have concluded that the list of creditors are correct, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the company to their knowledge, and (ii) no employee shall be retrenched as a consequence of shifting of the registered office from one state to another state and also there shall be an application filed by the company to the Chief Secretary of the concerned State Government or the Union territory.
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(4) There shall also be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application. |
(4) There shall also be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexures to the Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.
Provided that the applicant need not to submit separate copy of application with the Registrar and an intimation of filing of application in Form no. INC-23 with the Regional Director shall be shared with the Registrar through MCA system. |
Rule 33: Alteration of articles.
| Old Rule | Change |
| (2) A copy of order of the competent authority approving the alteration, shall be filed with the Registrar in Form No. INC.27 with fee together with the printed copy of the altered articles within fifteen days of the receipt of the order from the Central Government. | (2) subject to the provisions of sub-rule (1), for effecting the conversion of a public company into a private company, Service Request Number (SRN) of Form No. RD-1, pertaining to order of the Regional Director approving the alteration, shall be mentioned in Form No. INC-27 to be filed with Registrar along with fee together with the altered e-Memorandum of Association and e-Article of Association within fifteen days from the date of receipt of the order from the Regional Director. |
Rule 37: Conversion of unlimited liability company into a limited liability company by shares or guarantee.
| Old Rule | Change |
| (3) The Company shall within forty five days of passing of the special resolution file an application as prescribed in sub rule (1) for its conversion into a company limited by shares or guarantee alongwith the fees as provided in the Companies (Registration offices and Fees) Rules, 2014, by attaching the following documents, namely:-
a. notice of the general meeting along with explanatory statement; b. copy of the resolution passed in the general meeting; c. copy of the newspaper publication; d. a copy of altered Memorandum of Association as well as Articles of Association duly certified by any one of the Directors duly authorised in this behalf or Company Secretary of the Company, if any. e. declaration signed by not less than two Directors of the Company, including Managing Director, if any, that such conversion shall not affect any debts, liabilities, obligations or contracts incurred or entered into by or on behalf of the Company before conversion (except to the extent that the liability of the members shall become limited). f. a complete list of creditors and debenture holders, to whom individual notices have been sent under sub-rule (2) setting forth the following details, namely:- (i) the names and address of every creditor and debenture holder of the Company; (ii) the nature and respective amounts due to them in respect of debts, claims or liabilities: (iii) declaration by a Director of the Company that notice as required under sub-rule (2) has been dispatched to all the creditors and debenture holders with proof of dispatch. g. a declaration signed by not less than two Directors of the Company, one of whom shall be a Managing Director where there is one, to the effect that they have made a full enquiry into the affairs of the Company and, having done so, have formed an opinion that the list of creditors is correct, and that the estimated value as given in the list of the debts or claims payable on a contingency are proper estimates of the values of such debts and claims and that there are no other debts or claims against the company to their knowledge. h. a declaration of solvency signed by at least two Directors of the Company, one of whom shall be the Managing Director,where there is one to the effect that the Board of Directors of the Company have made a full inquiry into the affairs of the company, as a result of which they have formed an opinion that it is capable of meeting its liabilities and will not be rendered insolvent within a period of one year from the date of declaration, through a resolution, passed in a duly convened meeting or by circulation. i. The company shall also obtain a certificate from the Auditors that the company is solvent and that it is a going concern as on the date of passing of resolution by the Board certifying solvency as per clause (h) above. j. No Objection Certificate from sectoral regulator, if applicable. k. No Objection Certificate from all secured creditors, if any.
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(3) The Company shall within forty five days of passing of the special resolution file an application as prescribed in sub rule (1) for its conversion into a company limited by shares or guarantee alongwith the fees as provided in the Companies (Registration offices and Fees) Rules, 2014by attaching the following documents and declarations, namely:-
a. notice of the general meeting along with explanatory statement; b. copy of the resolution passed in the general meeting; c. copy of the newspaper publication; d. altered e- Memorandum of Association as well as e-Articles of Associationduly certified by any one of the Directors duly authorised in this behalf or Company Secretary of the Company, if any. e. declaration signed by not less than two Directors of the Company, including Managing Director, if any, that such conversion shall not affect any debts, liabilities, obligations or contracts incurred or entered into by or on behalf of the Company before conversion (except to the extent that the liability of the members shall become limited). f. a complete list of creditors and debenture holders, to whom individual notices have been sent under sub-rule (2) setting forth the following details, namely:- (i) the names and address of every creditor and debenture holder of the Company; (ii) the nature and respective amounts due to them in respect of debts, claims or liabilities: (iii) declaration by a Director of the Company that notice as required under sub-rule (2) has been dispatched to all the creditors and debenture holders with proof of dispatch. g. a declaration signed by not less than two Directors of the Company, one of whom shall be a Managing Director where there is one, to the effect that they have made a full enquiry into the affairs of the Company and, having done so, have formed an opinion that the list of creditors is correct, and that the estimated value as given in the list of the debts or claims payable on a contingency are proper estimates of the values of such debts and claims and that there are no other debts or claims against the company to their knowledge. h. a declaration of solvency signed by at least two Directors of the Company, one of whom shall be the Managing Director,where there is one to the effect that the Board of Directors of the Company have made a full inquiry into the affairs of the company, as a result of which they have formed an opinion that it is capable of meeting its liabilities and will not be rendered insolvent within a period of one year from the date of declaration, through a resolution, passed in a duly convened meeting or by circulation. i. The company shall also obtain a certificate from the Auditors that the company is solvent and that it is a going concern as on the date of passing of resolution by the Board certifying solvency as per clause (h) above. j. No Objection Certificate from sectoral regulator, if applicable. k. No Objection Certificate from all secured creditors, if any.
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Rule 39: Conversion of a company limited by guarantee into a company limited by shares.
| Old Rule | Change |
| (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. | (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 along with e- Memorandum of Association and altered e-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. |
Rule 40: Application under sub-section (41) of section 2 for change in financial year.
| Old Rule | Change |
| (2) Where the Regional Director on examining the application, referred to in sub-rule (1), finds it necessary to call for further information or finds such application to be defective or incomplete in any respect, he shall give intimation of such information called for or defects or incompleteness, on the last intimated e-mail address of the person or the company, which has filed such application, directing the person or the company to furnish such information, or to rectify defects or incompleteness and to re-submit such application within a period of fifteen days, in e-Form No. RD-GNL-5. | (2) Where the Regional Director on examining the application, referred to in sub-rule (1), finds it necessary to call for further information or finds such application to be defective or incomplete in any respect, he shall give intimation of such information called for or defects or incompleteness, on the last intimated e-mail address of the person or the company, which has filed such application, directing the person or the company to furnish such information, or to rectify defects or incompleteness and to re-submit such application within a period of fifteen days.
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Rule 41: Application under section 14 for conversion of public company into private company.
| Old Rule | Change |
| (1)(a) a draft copy of Memorandum of Association and Articles of Association , with proposed alterations including the alterations pursuant to sub-section (68) of section 2 | (1)(a) a e-Memorandum of Association and e-Articles of Association , with proposed alterations including the alterations pursuant to sub-section (68) of section 2 |
| (6)(b) Where the Regional Director on examining the application finds it necessary to call for further information or finds such application to be defective or incomplete in any respect, he shall within thirty days from the date of receipt of the application, give intimation of such information called for or defects or incompleteness, on the last intimated e-mail address of the person or the company, which has filed such application, directing the person or the company to furnish such information, to rectify defects or incompleteness and to re-submit such application within a period of fifteen days in e-Form No. RD-GNL-5 | (6)(b) Where the Regional Director on examining the application finds it necessary to call for further information or finds such application to be defective or incomplete in any respect, he shall within thirty days from the date of receipt of the application, give intimation of such information called for or defects or incompleteness, on the last intimated e-mail address of the person or the company, which has filed such application, directing the person or the company to furnish such information, to rectify defects or incompleteness and to re-submit such application within a period of fifteen days. |
About the authors:
Author: This article is written by FCA Mr Sumant Taparia, he is a practising Chartered Accountant since 2012 in Jaipur, Rajasthan. He possesses firm knowledge of Companies Law, Direct Tax Laws and GST Law and related compliances.
Co-author: The co-author of this article is ACS Mrs Akshita Anand, a practising Company Secretary since 2016 in Jaipur, Rajasthan. She possesses a vast knowledge of Companies Laws and associated Compliance. She also possesses knowledge of Income Tax Laws and GST Laws and related compliances, Trademark Laws etc.
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