NOTE ON
SECTION 8 COMPANY
A section 8 Company or we can also called a Non-profit Company can be
incorporated under the Companies Act, 2013 having the status of limited company
without the addition to its name of the word “Limited” or “Private Limited” for
Promoting Commerce, art, science, sports, education, research, social welfare,
religion, charity, protection of environment or any such other object and the
Company shall use its profits or other income in promoting its objects only and
prohibit the payment of any dividend to its members as well.
Section
8 company shall enjoy all the privileges and be subject to all the obligations
of limited companies. A firm may also be a member of section 8 company.
INCORPORATION
OF A COMPANY UNDER SECTION 8 OF THE COMPANIES ACT, 2013
(Power of Central Government Delegated to ROC
vide notification dated 21st May, 2014)
1.
Acquire DSC of the Directors and
Subscribers.
2.
Apply for the DIN in e-form DIR-3,
if don’t have DIN.
3.
File e-form INC-1 for reservation of
Name
4.
After
approval of Name, for acquiring license an application shall be made in Form
INC-12 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 to the Registrar within 60 days
of filing form INC-1 with following documents:
(a)
The
Memorandum of Association (MOA) of the company as per Form INC-13.
(b)
Articles
of Association (AOA)
(c)
the
declaration in Form INC-14 by an Advocate, a
Chartered Accountant, Cost Accountant or Company Secretary in practice, that
the draft memorandum and articles of association have been drawn up in
conformity with the provisions of Section
8 and rules made there under and that all the requirements of the
Act and the rules made there under relating to registration of the company
under Section 8 and matters incidental
or supplemental thereto have been complied with.
(d)
An
estimate of the future Annual income and expenditure of the company for next 3
years specifying the sources of the income and the objects of the expenditure.
(e)
The
declaration by each of the persons making the application in Form INC-15.
(f)
List of
names, descriptions, addresses & occupation of the promoters as well as
Board Members of the proposed company.
(g)
A
statement showing details of assets and liabilities of the company as on date
with the application.
(h)
A
statement giving brief description of work, if any, already done by the
association.
(i)
A
statement specifying briefly the grounds on which the application is made.
(j)
A letter
of authority/Power of Attorney.
5.
The
ROC shall issue license in Form INC-16 and the Registrar shall also have power
to include in the license such other conditions as may be deemed necessary by
him.
6.
After issuing license, file Form
SPICe (INC-32) with the following attachments:
(a)
The
Memorandum of Association (MOA) of the company as per Form INC-13.
(b)
Articles
of Association (AOA)
(c)
Affidavit
by Directors and Subscribers in INC-9
(d)
Consent
in DIR-2 for becoming directors in the Company
(e)
Deposit
undertaking
(f)
PAN
card of All the Directors and Subscribers
(g)
Aadhar
Card for address Proof of all the Directors and Subscribers
(h)
Electricity
bill for registered office address not older than 2 months
(i)
NOC
from the owner of registered office address.
(j)
License
copy
(k)
letter of
authority/Power of Attorney
(l)
If
the proposed name is based on a registered trademark or is subject matter of an
application pending for registration under the Trade Marks Act, then it is
mandatory to attach Approval of the owner of the trademark or the applicant of
such trademark for registration of Trademark.
(m)
If
the promoters are carrying on any Partnership firm, sole proprietary or
unregistered entity in the name as applied for then it is mandatory to attach
NOC from the sole proprietor/ partners/other associates/ existing company.
(n)
If
any subscriber to the proposed company is foreign company and/or company
incorporated outside India, then it is mandatory to attach Copy of certificate
of incorporation of the foreign body corporate and resolution passed.
(o)
Copy
of certificate of incorporation in case the subscriber to the proposed company
is Body Corporate.
(p)
If
any subscriber to the proposed company is a Company itself, then it is
mandatory to attach Resolution passed by Promoter Company.
(q)
In
case the name is similar to any existing company, then it is mandatory to
attach a certified true copy of No objection certificate by way of board
resolution / resolution.
(r)
In
case any of the directors has any interest in the proposed company, then it is
mandatory to attach Interest of first director(s) in other entities.
(s)
If
SRN of INC-1 is mentioned in the form and any of the person mentioned in INC-1
as promoter is not subscribing to MOA, then attach NOC in case there is change
in the promoters (first subscribers to Memorandum of Association).
7.
Upload
the form 49A and 49B for the PAN and TAN within 2 days of filing form SPICe
(INC-32).
8.
In
few days, the ROC shall issue the Certificate of Incorporation.
Note:
1.
In the
case of foreign subscriber the above documents need to be consularised before
the Indian Embassy in the respective Country. In case of wholly owned
subsidiary, a copy of the Board resolution of Holding Company approving the
investment in the proposed Indian Company and authorizing a person to sign the
incorporation papers on behalf of the company, duly attested by the officer of
the Indian Embassy in the foreign country where the registered office is
situate is also required to be attached with the papers.
2.
In case of
Section 8 company linked forms INC-33 (eMOA) and INC-34 (eAOA) shall not be
filed.
3.
A company shall not
alter the provisions of its Memorandum or Articles except with the previous
approval of the Regional Directors. (Power of
Central Government Delegated to Regional Directors vide notification dated 21st
May, 2014)
CONVERSION
OF EXISTING COMPANY INTO THE SECTION 8 COMPANY
A company
registered under Companies Act, 2013 or under any previous company law can be
converted into the section 8 Company with any of the charitable objects
specified above and the
restrictions & prohibitions as mentioned above.
1.
Pass the Board resolution for conversion and decide the
day, date, time and place for the General meeting.
2.
Take the approval of members by way of Special
Resolution for approving conversion, alteration of MOA and AOA as per section
8.
3.
File the Special Resolution in Form MGT-14 with the Notice
and explanatory statement.
4.
Make an application in Form INC-12 along
with the fee as provided in the Companies (Registration offices and fees)
Rules, 2014 to the
Registrar for a licence with the following documents:
(b)
Articles
of Association (AOA)
(c)
the
declaration in Form INC-14 by
an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in
practice, that the draft memorandum and articles of association have been drawn
up in conformity with the provisions of section 8 and rules made
there under and that all the requirements of the Act and the rules made there
under relating to registration of the company under section 8 and matters
incidental or supplemental thereto have been complied with.
(d)
An
estimate of the future Annual income and expenditure of the company for next 3
years specifying the sources of the income and the objects of the expenditure.
(f)
A
statement giving brief description of work, if any, already done by the
association.
(g)
A
statement specifying briefly the grounds on which the application is made.
(h)
A letter
of authority/Power of Attorney
(i)
Audited
Financial Statements, Board Report, Annual Return and the Auditors Report of
the two previous financial years immediately preceding the date of the
application.
(j)
A
statement showing in detail the assets (with the values thereof), and the
liabilities of the company (The statement should not be older than 30 days from
the date of application).
(k)
The
certified copy of the Board resolution and Special resolution.
5.
The company shall, within a week from the date of
making the application to the Registrar, publish a notice in Form INC-26 at his
own expense -
(a) at
least once in a vernacular/local newspaper in the principal vernacular/local
language of the district in which the registered office of the company is to be
situated or is situated, and circulating in that district, and at least once in
English language in an English newspaper circulating in that district; and
(b) On
the websites as may be notified by the Central Government
6.
A copy of the notice, as published, shall be sent to
the Registrar.
7.
The Registrar shall, after considering the objections,
if any, received by it within 30 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.
8.
The licence shall be in Form INC-17 and the
Registrar shall also have power to include in the licence such other conditions
as may be deemed necessary by him.
9.
The Registrar may direct the company to insert in its
memorandum, or in its articles, or partly in one and partly in the other, such conditions
of the license as may be specified by the Registrar in this behalf.
CONVERSION OF SECTION 8 COMPANY INTO ANY
OHER KIND
An existing company registered under section 8 seeks
to convert itself into a company of any other kind shall make an application to
the Regional Director for conversion of its status. Once the approval is given
by the Regional Director, the company shall cease to enjoy all the privileges/
concessions obtained by it on account of being a Section 8 company.
1.
Pass the Board resolution for conversion.
2.
Take the approval of Members by way of passing Special
resolution at a general meeting for approving such conversion.
3.
The explanatory statement annexed to the notice
convening the general meeting shall set out in detail the reasons for opting
for such conversion including the following, namely:-
(a)
the
date of incorporation of the company;
(b)
the
principal objects of the company as set out in the memorandum of association;
(c)
the
reasons as to why the activities for achieving the objects of the company
cannot be carried on in the current structure i.e. as a section 8 company;
(d)
if
the principal or main objects of the company are proposed to be altered, what
would be the altered objects and the reasons for the alteration;
(e)
what
are the privileges or concessions currently enjoyed by the company, such as tax
exemptions, approvals for receiving donations or contributions including
foreign contributions, land and other immovable properties, if any, that were
acquired by the company at concessional rates or prices or gratuitously and, if
so, the market prices prevalent at the time of acquisition and the price that
was paid by the company, details of any donations or bequests received by the
company with conditions attached to their utilization etc.
(f)
Details
of impact of the proposed conversion on the members of the company including
details of any benefits that may accrue to the members as a result of the
conversion.
4.
A certified true copy of the special resolution along
with a copy of the Notice convening the meeting including the explanatory
statement shall be filed with the Registrar in Form MGT-14 along with the fee.
5.
The company shall file an application in Form INC-18 with
the Regional Director (Power of Central Government
Delegated to RD vide notification dated 21st May, 2014)
along with the fee with followings attachments:
(a)
Memorandum
of association
(b)
Articles
of association
(c)
Certified
true copy of board resolution authorizing conversion
(d) Certified
true copy of the special resolution passed for approval for conversion into any
other kind and notice convening the general meeting along with the relevant
explanatory statement annexed thereto
(e) Certificate
from CA/CS/CWA (in practice) certifying that the conditions laid down in the
Act and rules, have been complied with
(f) The
company should have filed all its financial statements and Annual Returns up to
the financial year preceding the submission of the application to the Regional
Director and all other returns required to be filed under the Act up to the
date of submitting the application to the Regional Director and in the event
the application is made after the expiry of three months from the date of
preceding financial year to which the financial statement has been filed, a
statement of the financial position duly certified by chartered accountant made
up to a date not preceding 30 days of filing the application.
(g) Copy
of valuation report by a registered Valuer about the market value of assets
(h) Audited
financial statements, the Board’s reports, annual returns and the audit reports
for each of the two financial years immediately preceding the date of the
application or, where the company has functioned only for one financial year,
for such year
(i) Proof
of serving notice to the Govt Authorities i.e. the Chief Commissioner of Income
Tax having jurisdiction over the company, Income Tax Officer who has
jurisdiction over the company, the Charity Commissioner, the Chief Secretary of
the State in which the registered office of the company is situated, any
organisation or Department of the Central Government or State Government or
other authority under whose jurisdiction the company has been operating.
(j) Board
of directors shall give a declaration to the effect that no portion of the
income or property of the company has been or shall be paid or transferred
directly or indirectly by way of dividend or bonus or otherwise to persons who
are or have been members of the company or to any one or more of them or to any
persons claiming through any one or more of them.
(k) NOC
from all the creditors if any
(l) Statement
of financial position if applicable
(m) Full
details of fixed assets alienated if any, during the preceding three financial
years.
(n) Written
consent of the lenders is mandatory if any loan is outstanding.
(o) Where
the company has obtained any special status, privilege, exemption, benefit or
grant(s) from any authority such as Income Tax Department, Charity Commissioner
or any organisation or Department of Central Government, State Government,
Municipal Body or any recognized authority, a "No Objection
Certificate" must be obtained, if required under the terms of the said
special status, privilege, exemption, benefit or grant(s) from the concerned
authority.
(p) Proof
of payment of differential amount if the company has acquired any immovable
property through lease or otherwise from any Government or authority or body
corporate or person since incorporation at concessional rate or free of cost.
(q) Details
of donation/grant/benefit received since incorporation of company is mandatory
if company has received any donation and/or grant/benefits from any person or
authority since incorporation.
(r) Copy
of NOC received from sectoral regulatory authority if company is being regulated
by any sectoral regulator.
(s) Any
other information can be provided as an optional attachment(s).
6.
A copy of the application with annexure as filed with
the Regional Director shall also be filed with the Registrar.
7.
The company shall, within a week from the date of
submitting the application to the Regional Director, publish a notice at its
own expense, and a copy of the notice, as published, shall be sent forthwith to
the Regional Director and the said notice shall be in Form INC-19 and
shall be published-
(a) at
least once in a vernacular newspaper in the principal vernacular language of
the district in which the registered office of the company is situated, and
having a wide circulation in that district, and at least once in English
language in an English newspaper having a wide circulation in that district;
and
(b) on
the website of the company, if any, and as may be notified or directed by the
Central Government
8.
The company shall send a copy of the notice,
simultaneously with its publication, together with a copy of the application
and all attachments by registered post or hand delivery, to the Chief
Commissioner of Income Tax having jurisdiction over the company, Income Tax
Officer who has jurisdiction over the company, the Charity Commissioner, the
Chief Secretary of the State in which the registered office of the company is
situated, any organisation or Department of the Central Government or State
Government or other authority under whose jurisdiction the company has been
operating and if any of these authorities wish to make any representation to
Regional Director, it shall do so within 60 days of the receipt of the notice,
after giving an opportunity to the Company.
9.
The Regional Director may require the applicant to
furnish the approval or concurrence of any particular authority for grant of
his approval for the conversion and he may also obtain the report from the
Registrar.
10. On
receipt of the application, and on being satisfied , the Regional Director
shall issue an order approving the conversion of the company into a company of
any other kind subject to such terms and conditions as may be imposed in the
facts and circumstances of each case including the following conditions,
namely;-
(a) the
company shall give up and shall not claim, with effect from the date its
conversion takes effect, any special status, exemptions or privileges that it
enjoyed by virtue of having been registered under the provisions of section 8;
(b) if
the company had acquired any immovable property free of cost or at a
concessional cost from any government or authority, it may be required to pay
the difference between the cost at which it acquired such property and the
market price of such property at the time of conversion either to the
government or to the authority that provided the immovable property;
(c) any
accumulated profit or unutilised income of the company brought forward from
previous years shall be first utilized to settle all outstanding statutory
dues, amounts due to lenders claims of creditors, suppliers, service providers
and others including employees and lastly any loans advanced by the promoters
or members or any other amounts due to them and the balance, if any, shall be
transferred to the Investor Education and Protection Fund within 30 days of
receiving the approval for conversion;
11. Before
imposing the conditions or rejecting the application, the company shall be
given a reasonable opportunity of being heard by the Regional Director.
12. On
receipt of the approval of the Regional Director,
(a) the
company shall convene a general meeting of its members to pass a Special
resolution for amending its Memorandum of association and Articles of
association as required under the Act consequent to the conversion of the section 8 company
into a company of any other kind;
(b) File
the Special resolution with the notice and explanatory statement in the form
MGT-14 to the ROC along with the fee.
13. the
Company shall thereafter file with the Registrar.-
(i) a
certified copy of the approval of the Regional Director within 30 days from the
date of receipt of the order in Form INC-20 along
with the fee;
(ii) Amended
memorandum of association and articles of association of the company.
(iii) A declaration by the directors that the
conditions, if any imposed by the Regional Director have been fully complied
with.
14. On
receipt of the documents referred above in the form INC-20, the Registrar shall
register the documents and issue the fresh Certificate of Incorporation
REVOCATION
OF LICENCE
The Central
Government (Power of Central Government Delegated to RD vides notification dated
21st May, 2014) may, by order, revoke the
licence granted to a Company if the company:
1.
contravenes any of the requirements of section 8 of the
Companies Act, 2013, or
2.
any of the conditions subject to which a licence is
issued, or
3.
the affairs of the company are conducted fraudulently
or in a manner violative of the objects of the company or prejudicial to public
interest, and without prejudice to any other action against the company under
Companies Act, 2013,
and on such revocation or the company itself wants to surrender the
license granted, an intimation of such revocation or surrender of license shall
be filed with the Registrar by the company in e-Form INC-20. Registrar shall
enter the word(s) “Limited” or “Private Limited” as the case may be at the end
of the name of the company and the company shall cease to enjoy the
exemptions/privileges granted to it under section 8 of the Act.
No such order shall be made unless the company is given a reasonable
opportunity of being heard.
Where a licence is revoked the CG
may, by order, if it is satisfied that it is essential in the public interest,
direct that the company be wound up under this Act. If on the winding up or dissolution
of a company registered under section 8, there remains, after the satisfaction
of its debts and liabilities, any asset, they may be transferred to another
company registered under section 8 and having similar objects, subject to such
conditions as the tribunal may impose, or may be sold and proceeds thereof
credited to the Insolvency and Bankruptcy Fund formed under section 224 of the
Insolvency and Bankruptcy Code, 2016.
Where a licence is revoked the CG
may, by order, if it is satisfied that it is essential in the public interest,
direct that the company be amalgamated with another company registered under
section 8 and having similar objects and CG may, by order, provide for such
amalgamation to form a single company with such constitution, properties,
powers, rights, interest, authorities and privileges and with such liabilities,
duties and obligations as may be specified in the order.
No such order shall be made unless the company is given a reasonable
opportunity of being heard.
PENALTY
1. The
company shall be liable for fine which shall not be less than 10 lakh but which
may extend to 1 crore.
2. Every
Director and officer in default shall be liable for imprisonment for a term
which may be extended to 3 years or with fine not less than 25000/- but which
may extend to 25 lakh or with both.
3. If
it is proved that the affairs of the company were conducted fraudulently, every
officer in default shall be liable for action under section 447 of the
Companies Act, 2013 (Punishable with an imprisonment for
a term which shall not be less than 6 months but which may extend to 10 years
and shall also be liable to fine which shall not be less than the amount
involved in the fraud but which may extend to 3 times the amount involved in
the fraud).
Contact Details:
VISHAL SHARMA
Company Secretary
Mob: 9716763754
Email: csvishalpbs@gmail.com
FOR MORE ARTICLES VISIT TO:
http://csvishalsharma.blogspot.in/
-
Disclaimer: The Content is prepared on the basis of our general understanding and on the basis of relevant provision of Companies Act, 2013 read with rules made there under. The whole content is only for the knowledge sharing purpose, we do not take any responsibility for the correctness of the same.
Disclaimer: The Content is prepared on the basis of our general understanding and on the basis of relevant provision of Companies Act, 2013 read with rules made there under. The whole content is only for the knowledge sharing purpose, we do not take any responsibility for the correctness of the same.
Read more: Post incorporation compliance of section 8 companies
ReplyDeleteThanks Admin. Thanks for sharing this Article.
ReplyDeletehow to register a section 8 company
section 8 company registration process