Registration of a Private Limited Company in Kerala
Definition of Private Limited Company
Section 2(68) of Companies Act, 2013 defines private companies. According to that, private companies are those companies whose articles of association restrict the transferability of shares and prevent the public at large from subscribing to them.
Features of a Private Limited Company
- Share Capital- No minimum share capital is required to frame a Private Limited Company.
- Members- Minimum 2 and maximum 200 members: A private company can have a minimum of just two members (but just one is enough if it a One Person Company), and a maximum of up to 200 members.
- Transferability of shares restricted: Private companies cannot freely transfer their shares to the public like public companies. This is why stock exchanges never list private companies.
- “Private Limited”: All private companies must include the words “Private Limited” in their names.
Step wise procedure for incorporating a Private Company in Kerala
1) Documents required for forming a Private Limited Company in Kerala:
- Latest passport size photo.
- Copy of Pan card of Directors
- Copy of Aadhaar Card
- Copy of Voter Identity card/ driving license/passport of the directors
- In case of NRI or foreign national, passport copy has to be notarized at the Indian Embassy of the particular country.
- Notarized utility bill of the particular country where the NRI or foreign national resides.
- Latest bank statement/ mobile bill/ utility bill of not less than two months old.
2) Documents required for registering situation of Registered office.
- Registered office proof of the company stating if the property is rented/ leased.
- Copy of the rental agreement or lease agreement.
- Copy of electricity/water bill (business place) (Not older than 2 months)
- In case of own property, copy of sale deed and electricity bill is sufficient
- Copy of no objection certificate from the owner of the property
3) Forms required to be filed:
1. Filing of Application for Reservation of Name: An application for reservation of name of the Private Limited Company shall be made in RUN Form by paying Govt. Fee of Rs. 1000/-. Maximum Two Names may be applied in RUN Form, If the name(s) applied are unique one and are not Identical/Similar with an existing Company/LLP/ Trademark then MCA shall reserve the same.
2. Obtaining Digital Signature Certificates (DSC): After approval of name of proposed company, the next step is to obtain DSC of all the proposed first directors and subscribers.
3. Preparation of Incorporation Documents: On the basis of KYC documents and various information received from proposed first directors and subscribers, documents are prepared for incorporation of Private Limited Company.
4. Filing of Various E-Forms for Incorporation of Private Limited Company: The E-forms mentioned below are filed with MCA for incorporation of Private Limited Company.
- SPICE FORM 32: The form contains all the information relating to Director, promoter and first subscribers and information with relation to situation of registered office.
- FORM INC-33 (SPICe+MOA): This form contains main objects of the Company, liability of the members etc.
- FORM INC-34 (SPICe +AOA): This form contains regulations for management of the company.
- E- Forms INC-9: Declaration by First Directors and subscribers is filed by this form. No document is attached in this form. This form is filed only after affixing DSC of first directors/subscribers.
- E-Form INC-35 AGILE PRO: Application for registration under Goods and Service Act, 2016 (GST), PF Registration, ESI Registration and Opening of Bank Account is made through this form.
Registrar shall verify the filed forms and their attachments and if the filed forms are proper and fulfills the requirements of Companies, 2013 and rules made there under regarding incorporation of company, then he shall issue Certificate of Incorporation.
Registration of a One Person Company in Kerala
Definition of One Person Company:
As per Section 2(62) of the Companies Act, 2013 One-person Company means a company which has only one person as a member.
As per Section 3 (1) (c) One person, where the company to be formed is to be One person Company that is to say, a private company,
The memorandum of One Person Company (In form INC-32 Spice) shall indicate the name of the other person, with his prior written consent who shall, in the event of the subscriber’s death or his incapacity to contract become the member of the company and the written consent of such person shall also be filed with the Registrar in form INC-3 at the time of incorporation of the One Person Company along with its memorandum and articles.
In nutshell, name of the nominee is required who will become member in the event of death of sole member.
In case of withdrawal of consent by nominee the sole member shall nominate another person as nominee within 15 days of receipt of withdrawal and the company within 30 days of notice of withdrawal and intimation of name of another person nominated in Form- INC-4 and consent of another person nominated in Form- INC-3 is required to be filed with ROC.
Rule 3 of the Companies (Incorporation) Rules, 2014 (Further amended and named as Companies (Incorporation) Second Amendment Rules,2021 they shall come into force w.e.f. April 01, 2021.
Requirements for incorporating one person company as per Rule 3 are as under:
(1) Only a natural person who is an Indian citizen, whether resident in India or otherwise (amendment is effective from April 01, 2021):
(a) shall be eligible to incorporate a One Person Company;
(b) shall be a nominee for the sole member of a One Person Company.
2[Explanation I – For the purposes of this rule, the term “resident in India” means a person who has stayed in India for a period of not less than one hundred and twenty days during the immediately preceding financial year. (Amendment is effective from April 01, 2021):
1[(2) A natural person shall not be member of more than a One Person Company at any point of time and the said person shall not be a nominee of more than a One Person Company.]
In nutshell, an individual shall become member and nominee of Maximum one OPC at any point of time.
(3) Where a natural person, being member in One Person Company in accordance with this rule becomes a member in another such Company by virtue of his being a nominee in that One Person Company, such person shall meet the eligibility criteria specified in sub rule (2) within a period of one hundred and eighty days.
(4) No minor shall become member or nominee of the One Person Company or can hold share with beneficial interest.
(5) Such Company cannot be incorporated or converted into a company under section 8 of the Act.
(6) Such Company cannot carry out Non-Banking Financial Investment activities including investment in securities of any Body corporates.
(7) 5[Omitted] (amendment will be effective from April 01, 2021)
Effect of omission : Since the aforesaid amendment in Companies (Incorporation) Rules, 2014 had done away with requirement of paid up capital of Rupees Fifty Lakhs or less and turnover of Rupees Two Crore or less for Conversion of OPC, now any Resident or Non-Resident who has stayed in India for more than 120 who has incorporated OPC can convert the OPC into Private Company or Public Company other than Section 8 Company with no paid up capital and turnover restrictions. The said announcement leads to amendment in Rule 6 of Companies (Incorporation) Rules, 2014 which is reproduced as below:
Process for Conversion of OPC into Private or Public company in Kerala
1. The One Person company shall alter its memorandum and articles by passing a resolution in accordance with sub-section (3) of section 122 (it shall be sufficient in case of one person company that the resolution is communicated by member to OPC and entered in minutes book no need to conduct general meeting in this respect) of the Act to give effect to the conversion and to make necessary changes incidental thereto.
2. A One Person company may be converted into a Private or Public Company, other than a company registered under section 8 of the Act, after increasing the minimum number of members and directors to two or seven members and two or three directors, as the case may be, and maintaining the minimum paid-up capital as per the requirements of the Act for such class of company and by making due compliance of section 18 of the Act for conversion.
3. The company shall file an application in e-Form No.INC-6 (new format of form) amendment is effective from April 01, 2021 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.
4. On being satisfied that the requirements stated herein have been complied with, the Registrar shall approve the form and issue the Certificate.
Hence pursuant to the aforesaid amendment the requirement of filing INC-5 has been omitted with and the format of INC-6 has been changed amendment will be effective from April 01, 2021
Non-Applicability of various sections on OPC, which means compliance burden is less in case of OPC.
As per Section 122 of the Companies Act, 2013 the following sections are not applicable in case of One Person Company:
1. Section – 96 (OPC is not required to hold AGM only the business which were transacted are required to be inserted under minutes book and such date shall be deemed to be the meeting date)
2. Section- 98 and Section- 100-111 (both inclusive)
3. Where there is only one director on the board of directors of OPC it shall be sufficient for such OPC to enter such transaction in minutes book and that date shall be deemed to be the board meeting date. (No need to conduct a Board meeting in case of OPC having only one Director)
Registration of a Section-8 Company in Kerala
|S.NO||DESCRIPTION||COMPLIANCES TO BE DONE||FORMS TO BE FILED|
|1.||Meaning of Section-8 Company-
A company incorporated under Section 8 of the Companies Act, 2013 is a Company incorporated for promoting commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object, provided the profits, if any, or other income is applied for promoting only the objects of the company. Such a company is a non-profit body and is akin to an NGO.
Features of Section-8 Company
Ø It is formed for promoting commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object;
Ø The profits, if any, are applied in promoting its objects;
Ø It shall register either Private or Public Company accordingly it will enjoy privileges and obligations as applicable to Private or Public Company except the exemptions which are specifically provided to Section 8 Company by the Central Government.
Ø A One Person Company cannot function as a Section 8 Company.
Ø Section 8 companies have its independent corporate legal entity, similar to private company, public company or a Limited Liability Partnership and hence enjoys credibility in the eyes of the public.
Ø It is Limited Company. So, it can register either as Limited by Shares or Limited by Guarantee. Section 8 Company can’t be incorporated as unlimited Company.
Ø A firm may be a member of the company registered under this section;
Ø A company registered under this section shall not alter the provisions of its memorandum or articles except with the previous approval of the Central Government.
|Procedure of Incorporation of Section-8 Company
Application for License and Certificate of Incorporation
· Capital Bifurcation
· Short description of the Operations/Business to be conducted by the company.
· Proof of office address/Correspondence Address of the Company
· Phone Number and E-Mail Id of the Company
· Copy of utility bills of correspondence address not older than two months.
· Estimated income and expenditure for next three years.
· Grounds for making an application
· Detail of proposed Directors and Subscribers
· Detailed object
· Statement of work proposed
· Proof of identity as well as the residential address of subscribers/Directors
Ø Self-Attested PAN
Ø Self-Attested Aadhaar (Not required if having updated DIN)
Ø Self-Attested Latest Bank Statement having Name & Address of Individuals
(Not required if having updated DIN)
Ø Active Mobile Number and E-Mail-Id as OTPs will be sent on Directors Phone Number and E-Mail id’s
Ø Educational Qualification and Occupation
Ø Place of Birth
Ø Duration of stay at present address (if duration is less than one year, then previous address with proof)
Ø Passport size photographs of all the Directors.
Ø Digital Signatures (DSC) of Subscribers/Directors.
· AOA in INC-13
· Declaration as per Form No. INC-14 duly stamped and notarized by professionals
· Declaration as per Form No. INC-15 duly stamped and notarized by promoters.
· FORM- AGILE PRO