Section 2 (68) states that a private company means a company having a minimum paid up share capital as may be prescribed, and which by its articles:
- restricts the right to transfer its shares;
- limits the number of its members to two hundred;
- prohibits any invitation to the public to subscribe for any securities of the Company:
Points to be kept in mind before incorporation of a Private Limited Company:
Decide regarding the proposed name to be applied, objects to be carried by the Company, proposed registered office address, authorized capital, number of promoters, number of directors, and number of shares to be subscribed by each promoter.
The name of the company should be in consonance with the principal objects of the company as set out in the memorandum of association. Every name need not be necessarily indicative of the objects of the company, but when there is some indication of objects in the name, then it shall be in conformity with the objects mentioned in the memorandum. [Rule 8(2)(b)(ii) of Companies (Incorporation) Rules, 2014]
The proposed name should not fall in the ambit of undesirable names specified in Rule 8 of Companies (Incorporation)Rules, 2014
The Company must have a minimum Paid up Share Capital as may be prescribed. [Section 2 (68)]
There must be at least 2 subscribers to the memorandum. [Section 3(1)(b)]
Maximum number of members allowed is 200 members [ section 2(68)]
Minimum number of Directors required is 2 Directors with a maximum limit of up to 15 Directors. A Company may appoint more than 15 directors after passing a special Resolution in a general Meeting. [Section 149(1)(a) (b)]
Every company shall have at least one director who has stayed in India for a total period of not less than one hundred and eighty-two days in the previous calendar year.[(Section 149(3)]
Restrictive provisions given under definition of Private Company [Section 2(68)] should be taken care of and be included in the Drafting of Memorandum and Articles of Association of Company.
All the Directors should have valid DIN. (In case the proposed directors dont have a Director Identification number (DIN) allotted to them, Pl. Ref. procedure for DIN Application.)
Digital Signature for any one of the Director is required to digitally sign the E-Forms to be submitted with the Registrar of Companies.
Procedure for Incorporation of Private Limited Company:
[Section 4, Section 5, Section 7(1) Read with Rule No. 8,9,10,11,12,13,14,15,16,17,18 of the Companies (Incorporation) Rules, 2014]
Application for Name Availability
An Application for reservation of Name needs to be filed with the Registrar in E-Form INC -1 along with such fees as may be prescribed . [Section 4(4) & 4(5) Read with Rule 9 of the Companies (Incorporation) Rules, 2014].
Application in Form No. INC.1 should have following documents as attachment:
(a) Proof of significance in terms of Rules wherever applicable;
(b) In case the proposed name(s) are based on a registered trademark or is a subject matter of an application pending for registration under the Trade Marks Act, 1999, the approval of the owner of the trademark or the applicant of such application for registration of Trademark;
(c) Copy of Central Governments approval in case the proposed name contains such word(s) or expression(s) for which the approval of Central Government is required,;
(d) Proof of relation and NOC from such other persons as required in rule 8(4) (In case the key word used in the name proposed is the name of a person other than the name(s) of the promoters or their close blood relatives, No objection from such other person(s) shall be attached with the application for name. In case the name includes the name of relatives, the proof of relation shall be attached and it shall be mandatory to furnish the significance and proof thereof for use of coined words made out of the name of the promoters or their relatives).;
(e) In principle approval from the concerned regulator;
(f) NOC from the sole proprietor/partners/other associates (The applicant shall declare in affirmative or negative ( to affirm or deny ) whether they are using or have been using in the last five years , the name applied for incorporation of company or LLP in any other business constitution like Sole proprietor or Partnership or any other incorporated or unincorporated entity and if, yes details thereof and No Objection Certificate from other partners and associates for use of such name by the proposed Company or LLP, as the case may be, and also a declaration as to whether such other business shall be taken over by the proposed company or LLP or not;
(g) NOC from existing company,
(h) Copy of affidavit, in case proposed name including phrase Electoral Trust
(i) Resolution of unregistered companies in case of Chapter XXI (Part I) companies;
(j) Board resolution of promoter body corporate(s), in case one or more of the promoter is a body corporate
(k) Optional attachment, if any.
After ascertaining name availability from the Registrar of Companies, steps should be taken to get the memorandum and articles of association for the proposed company drafted and printed. The memorandum and articles shall be in conformity with the provisions of Section 4 and 5 of the Companies Act 2013 and rules made thereunder.
Application for Incorporation of Company
- Application for Registration of Company shall be filed with Registrar, in whose jurisdiction registered office of a company is proposed to be situated in E-Form No. INC-7 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 and with following documents which are required to be executed (signed) before they are submitted to the ROC for registration:
- Memorandum and Articles of Association of Company signed by each subscriber to the memorandum in the manner: prescriber under Rule 13of the Companies (Incorporation) Rules, 2014 [Section 7(1)(a)] (pl. ref. checklist mentioned below for signing of Memorandum and Articles of the Company)
- Declaration by Professional (an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in Practice) in Form No. INC-8, who is engaged in the formation of the company, and by a person named in the articles as a director, manager or secretary of the company, that allrequirements of the Act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with. [Section 7(1)(b) read with Rule 14 of the Companies (Incorporation) Rules, 2014]
- Affidavit from each of the subscribers and each of the First Directors in Form No. INC-9 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 this Act or any previous company law during the preceding five years and that all the documents filed with theRegistrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief. [Section 7(1)(c) read with Rule 15 of the Companies (Incorporation) Rules, 2014]
- Furnish particulars and documents of each subscriber to the Memorandum as given under Rule 16 of the Companies (Incorporation) Rules, 2014 [Section 7(1)(e)] (pl. ref. checklist mentioned below for particulars of every subscriber to be filed with the Registrar)
- No Objection Certificate in case of change of promoters.
- the specimen signature and latest photograph duly self attested by the promoter and first director shall be in the prescribed Form No.INC.10. [Rule 16(1) of Companies (Incorporation)Rules, 2014]
- If the promoter is a body corporate company, charter documents and certified true copy of the board resolution specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed tobe subscribed by the body corporate, and the name, address and designation of the person authorized to subscribe to the Memorandum; [Rule 16(2) of Companies (Incorporation)Rules, 2014]
- If the promoter is a body corporate limited liability partnership or partnership firm, charter documents and certified true copy of the resolution agreed to by all the partners specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subscribed in the body corporate, and the name of the partner authorized to subscribe to the Memorandum; [Rule 16(2) of Companies (Incorporation)Rules, 2014]
- Address for correspondence till Registered Office is established. [Section 7(1)(d)]
- Form No. DIR-12- Appointment of First Directors
Particulars of each person mentioned in Articles as First Directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed and his interest in other Firms or Bodies Corporate along with his consent to act as Director is required to be filed in E-Form No. DIR-12 along with such feeas provided in Companies (Registration offices and fees) Rules, 2014. [Section 7(1)(f) & 7(1)(g) read with Rule 17 of the Companies (Incorporation) Rules, 2014]
ISSUANCE OF CERTIFICATE OF INCORPORATION [Section 7(2)]
If all the documents are in order then on the basis of Forms Filed and on being satisfied Registrar will issue a Certificate of Incorporation in Form No. INC-11 bearing a Corporate Identity Number (CIN), which shall be a distinct identity for the company and which shall also beincluded in the certificate. [Section 7(2) and 7(3) read with Rule 18 of the Companies (Incorporation) Rules, 2014 ]
VERIFICATION OF REGISTERED OFFICE [Section 12(1) & (2)]
A Company shall have its Registered Office within 15 days of its Incorporation capable of receiving and acknowledging all communications and notices as may be addressed to it.
Verification of Registered Office of the Company shall be filed with the Registrar within 30 days of Incorporation in E-Form INC-22 along with fee as provided in Companies (Registration offices and fees) Rules, 2014 with the attachments as given under Rule 25 of the Companies (Incorporation) Rules, 2014.
The following mandatory documents are required to be filed along with E-Form INC 22:
The registered document of the title of the premises of the registered office in the name of the company; or
The notarized copy of lease or rent agreement in the name of the company along with a copy of rent paid receipt not older than one 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 company 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 two months.
List of all the companies (specifying their CIN) having the same registered office address, if any;
Any other attachment as may be prescribed.
Checklist for signing of Memorandum and Articles of Association of the Company (Rule 13 of Companies (Incorporation) Rules, 2014
The Memorandum and Articles of Association of the company shall be signed in the following manner, namely:-
(1) The memorandum and articles of association of the company shall be signed by each subscriber to the memorandum, who shall add his name, address, description and occupation, if any, in the presence of at least one witness who shall attest the signature and shall likewise sign and add his name, address, description and occupation, if any and the witness shall state that I witness to subscriber/subscriber(s), who has/have subscribed and signed in my presence (date and place to be given); further I have verified his or their Identity Details (ID) for their identification and satisfied myself of his/her/their identification particulars as filled in
(2) Where a subscriber to the memorandum 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.
(3) Such person shall also read and explain the contents of the memorandum and articles of association to the subscriber and make an endorsement to that effect on the memorandum and articles of association.
(4) Where the subscriber to the memorandum is a body corporate, the memorandum and articles of association shall be signed by director, officer or employee of the body corporate duly authorized in this behalf by a resolution of the board of directors of the body corporate and where the subscriber is a Limited Liability Partnership, it shall be signed by a partner of the Limited Liability Partnership, duly authorized by a resolution approved by all the partners of the Limited Liability Partnership:
Provided that in either case, the person so authorized shall not, at the same time, be a subscriber to the memorandum and articles of Association.
(5) Where subscriber to the memorandum is a foreign national residing outside India-
(a) in a country in any part of the Commonwealth, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized by a Notary (Public) in that part of the Commonwealth.
(b) in a country which is a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized before the Notary (Public) of the country of his origin and be duly apostillised in accordance with the said Hague Convention.
(c) in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity, shall be notarized before the Notary (Public) of such country and the certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (40 of 1948) or, where there is no such officer by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889 (52 and 53 Vic.C.10), or in any Act amending the same;
(d) visited in India and intended to incorporate a company, in such case the incorporation shall be allowed if, he/she is having a valid Business Visa.
Explanation.- For the purposes of this clause, it is hereby clarified that, in case of Person is of Indian Origin or Overseas Citizen of India, requirement of business Visa shall not be applicable.
Checklist regarding particulars of every subscriber to be filed with the Registrar:
The following particulars of every subscriber to the memorandum shall be filed with the Registrar-
(a) Name (including surname or family name) and recent Photograph affixed and scan with MOA and AOA;
(b) Fathers/Mothers/ name;
(d) Date of Birth;
(e) Place of Birth (District and State);
(f) Educational qualification;
(h) Income-tax permanent account number;
(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 less than one year) similarly the office/business addresses;
(j) Email id of Subscriber;
(k) Phone No. of Subscriber;
(l) Fax no. of Subscriber (optional)
Explanation.- information related to (i) to (l) shall be of the individual subscriber and not of the professional engaged in the incorporation of the company;
(m) Proof of Identity:
For Indian Nationals:
PAN Card ( mandatory) and any one of the following
Voters identity card
Driving License copy
Unique Identification Number (UIN)
For Foreign nationals and Non Resident Indians
(n) Residential proof such as Bank Statement, Electricity Bill, Telephone / Mobile Bill:
Provided that Bank statement Electricity bill, Telephone or Mobile bill shall not be more than two months old;
(o) Proof of nationality in case the subscriber is a foreign national.
(p) If the subscriber is already a director or promoter of a company(s), the particulars relating to-
(i) Name of the company;
(ii) Corporate Identity Number;
(iii) Whether interested as a director or promoter;
(2) Where the subscriber to the memorandum is a body corporate, then the following particulars shall be filed with the Registrar-
(a) Corporate Identity Number of the Company 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 particulars as specified above for subscribers in terms of clause (e) of sub- section (1) of section 7 for the person subscribing for body corporate;
(i) in case of foreign bodies corporate, the details relating to-
(i) the copy of certificate of incorporation of the foreign body corporate; and
(ii) the registered office address.
ACTION POINTS REQUIRED TO BE TAKEN AFTER INCORPORATION
v Maintain and Preserve copies of all documents and information filed for the Incorporation at Registered Office of the Company till its dissolution. [Section 7(4)]
v Arrange printing of copies of Memorandum and Articles of Association with Certificate of Incorporation.
v Hold First Board Meeting of the Company within 30 days of its incorporation by giving not less than 7 days notice in writing [Section 173].
v Open a Bank Account in the name of the Company and confirm whether subscription money has been received.
v Issue Shares to the Subscribers in accordance with Rule 5 of Companies (Share Capital and Debentures) Rules, 2014 and deliver the Share Certificates to subscriber within a period of two months from the date of Incorporation. [Section 56(4)(a)]
v Pay stamp duty on the shares issued according to the provision of the Indian Stamp Act, 1899.
v Arrange and maintain the printed blank Forms to be used for issue of share certificates in accordance with Rule 7 of Companies (Share Capital and Debentures) Rules, 2014.
v Maintain minutes of First Board meeting within 30 days of conclusion of meeting [Section 118]
v Maintain the Statutory Registers required under various provisions of the Act
v Appoint First Auditors in Board meeting within 30 days of Incorporation of Company. In case of inability, inform the members to appoint auditor within 90 days at Extra-ordinary General Meeting[Section 139(6)]
v Make application to Income Tax Department for Arranging Permanent Account Number (PAN) and Tax Deduction and Collection Account Number (TAN).
v Have painted the name of the Company on outside every office, place of business, building etc. [Pursuant to Sec 12(3)(a)]
v Arrange a common seal engraved with name of the Company and adopt it at the First meeting of Board of Directors. (Common Seal is optional now). [Pursuant to Sec 12(3)(b)]
v Get its name, address of its registered office and the Corporate Identity Number along with the Telephone Number, fax number, if any, email and websiteaddress if any, printed in its entire business letters, letter heads, Billheads, Invoice Forms, Receipt Forms and all other official publications etc. [Pursuant to Sec 12(3)(c)]
v Have its name printed on hundies, promissory notes, bills of exchange etc. [Pursuant to Sec 12(3)(d)]
v Arrange rubber stamps in the name of the Company and all the stationary items required.
v File Applications with various Authorities for getting Registrations under various laws & Acts, as applicable to the Company.
v All the documents wherein authorized capital is mentioned shall be required to have paid up capital, printed as well. [Section 60(1)]