Persons desirous of forming a company must adhere
to the step by step procedure as discussed below:-
1. Selection of type of
the company.
2. Selection of name for the proposed company.
3. Apply for Directors Identification Number and Digital Signatures.
4. Drafting of Memorandum and Articles of Association.
5. Stamping, digitally signing and e-filing of various documents with
the Registrar.
6. Payment of Fees.
7. Obtaining Certificate of Incorporation.
8. Preparation and filing of Prospectus/Statement in lieu of Prospectus
and e-Form 19/20 (in case of public companies) for obtaining the
certificate of commencement of business.
9. Obtaining Certificate of Commencement of business (in case of public
limited companies).
1. Selection of the type of company
The Promoters of a company may be individual
entrepreneurs or body corporate engaged in efforts to incorporate a
company. They have the power of defining the object of the company and
deciding various matters for the company proposed to be incorporated.
It is depending upon, the purposes for which the company is to be
incorporated, proposed scale of operations, capital involved, etc. The
promoters can select type of the company as they wish to form
themselves into viz. private company, public company, non-profit making
company, etc.
2. Selection of name
Six
names are required
to be selected in order of
preference after taking notes of numerous provisions, clarifications,
circulars and rules made by the Ministry of Corporate Affairs, etc. In
case key word is required, significance of each key word should be
given in the e-Form 1A.
2.1 Applying for ascertaining the
availability of the selected name
The promoters are required to make an application to the concerned
Registrar of Companies to be submitted electronically to the Ministry
of Corporate Affairs on the portal of MCA. An application shall be in
e-Form 1A as prescribed by Notification No. GSR 56(E) dated 10th Feb.,
2006 duly digitally signed by any one promoter or managing director or
director or manager or secretary of the company along with the required
fee for ascertaining whether the selected name is available for
adoption by the promoters of the proposed company.
2.2 Approval of the name
After receipt of completed application in e-Form 1A, the Registrar
shall intimate whether the proposed name is available for adoption or
not. The confirmation of the name made available by the Registrar shall
be valid for a period of six months.In case, if the promoters fail to
submit all the required documents for incorporation within that period,
then they are required to submit another application after payment of
requisite fees.
3. Requirement for having DIN
As per proviso to section 253 of the Companies Act, 1956, inserted by
the Companies (Amendment) Act, 2006, w.e.f. 1-11-2006, no company shall
appoint or re-appoint any individual as director of the company unless
he has been allotted a Director Identification Number under section
266B.
New section 266A has been inserted by the
Companies (Amendment) Act, 2006 which provides that every individual,
intending to be appointed as director of a company shall make an
application for allotment of Director Identification Number (DIN) to
the Central Government in the prescribed DIN Form. Therefore, before
submission of e-Form 1A all the directors of the proposed company must
ensure that they are having DIN and if they are not having DIN, it
should be first obtained.
Specific care
should be taken that a person
cannot have more than one DIN, therefore, a DIN once obtained shall
serve the requirement for all the companies in which he is a director
or intended to be a director.
3.1 Requirement for having digital
signatures
After 16th Sept., 2006, every documents prescribed under the Companies
Act, 1956 is required to be filed with the digital signature of the
managing director or director or manager or secretary of the Company,
therefore, it is compulsorily required to obtain digital signatures of
at least one director to sign the e-Form 1A and other documents. It may
be noted that if the director or other persons covered are having
digital signatures, their signatures may be used for the above said
purpose and there is no need take new signature again.
4. Preparation of the Memorandum of
Association (MOA) and Articles of Association (AOA)
Drafting of the MOA and AOA is generally a step subsequent to the
availability of name made by the Registrar. It should be noted that the
main objects should match with the objects shown in e-Form. These two
documents are basically the charter and internal rules and regulations
of the companies. Therefore, they must be drafted with utmost care with
the experts advise and the other object clause should be drafted in a
very broader sense.
5. Filing of documents with the
Registrar
Next step for the promoters is to file the following documents with the
Registrar for incorporation of the company. The following documents
shall be submitted to the Registrar alongwith the adequate filing fees
as applicable for registration of the company online with in a period
of six months from the date of intimation of availability of name:-
1. Memorandum of Association, duly signed by the
subscribers and witnessed, showing the number of shares against their
names electronically attached in PDF file. It should also be properly
stamped as per the stamp duty applicable in the State, where the
registered office of the company is to be situated.Simultaneously
original stamped copy of the Memorandum of Association shall be
submitted with the Registrar of Companies concerned.
2. Articles of Association should be duly signed
by the subscribers and witnessed, showing the number of shares against
their names electronically. It should be properly stamped according to
the authorized share capital as per the stamp duty applicable in the
state, where the registered office of the company to be situated.
Simultaneously original stamped copy of the Memorandum of Association
shall be submitted with the Registrar of Companies concerned.
3. Copy of the agreement, if any, which the
company proposes to, enter in to with any individual for appointment as
its managing or whole-time director or manager shall be attached in the
PDF file.
4. Declaration in e-Form 1 by an advocate or
company secretary or chartered accountant engaged in whole time
practice in India or by a person named in the Articles as a director,
manager or secretary of the company, that all the requirements of the
Companies Act, 1956 and the rules made thereunder have been complied
with in respect of registration and matters precedent and incidental
thereto, which may be accepted by the Registrar as sufficient evidence
of such compliance. It should be carefully noted that details of all
the companies in which directors are also director should be given and
the names, addresses and other particulars of directors and promoters
should be matched with the information provided in the DIN application
Form. [ Section 33(2)] (Appendix 2).
5. Power of Attorney for should be furnished by
all the subscribers in favour of any one subscriber or any other person
authorising him to file these documents and to with the Registrar and
to obtain certificate of incorporation. The power of attorney should be
given on Non-Judicial stamp paper of appropriate value and shall be
submitted to the Registrar. (Appendix 3).
6. Other agreement if any, which has been stated
in the Memorandum or Articles of Association shall also be filed in the
PDF file with the Registrar because in such cases the agreement will
form part of this basic document.
7. E-Form 18 is to be filed with the Registrar
electronically with the digital signatures in regard to location of the
registered office. E-Form 18 shall also be certified by the company
secretary or chartered accountant or cost accountant in whole –time
practice. [ Section 146 (2)] (Appendix 4)
8. E-Form 32 is required to be filed with the Registrar electronically
for filing particulars of directors. The personal details should match
with the information provided in the DIN. Following additional details
are also required to given in e-Form 32:
(a) Name and CIN of all the companies in which
they are directors;
(b) Names of partnership concerns in which they are partner;
(c) Names of proprietorship concerns in which they are proprietor;
In case if the field provided in the e-From 32 is
not sufficient, an annexure may also be enclosed for the required
details. As an e- Form 32 provides fields for three directors only,
e-Form 32AD i.e. Addendum to e-Form 32 shall be submitted for
additional appointments. E-Form 32 AD, if any is also required to be
certified by the company secretary or chartered accountant or cost
accountant in practice digitally before filing with the Registrar.
Consent to act as director on plain paper and authorization to submit
e-Form 32 from all the director should be attached with the e-Form 32.
E-form 32 is required to be digitally signed by
the director or managing director or manager or secretary of the
company. E-Form 32 shall be filed along with the adequate filing fee as
prescribed under Schedule XIII of the Companies Act, 1956, However, no
separate filing fee is required to be paid on the addendum of e-Form
32.( Appendix 5).
6. Payment of registration fees for
a new company
The fees payable to the Registrar at the time of registration of a new
company varies according to the authorized capital of a company
proposed to be registered as per Schedule X to the Act. Fees can be
calculated by the MCA portal.
7. Certificate of Incorporation
(section 33 and 34)
On the satisfaction of the Registrar that the requirements specified in
sections 33(1) and 33(2) have been complied with by the company, he
shall retain the documents and register the MOA, AOA and other
documents. Section 34(1) cast an obligation on the Registrar to issue a
Certificate of Incorporation, normally within 7 days of the receipt of
documents.
8. Commencement of Business
A Private limited company and a company not having share capital may
commence its business activities from the date of its incorporation.
However, a public Limited Company having share capital is required to
take certificate of commencement of business before it can commence
business.
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