PROCESS OF SHIFTING OF REGISTERED OFFICE FROM ONE STATE/UT TO ANOTHER

A Company shall have a registered office within 30 days of its incorporation. It is the official address of the company incorporated under the provision of Companies act 2013  or under any previous company law. The procedure to change the registered office of the Company from one State or union territory  does not only involve change  from one state or Union Territory to another but also involves change of Jurisdiction of Registrar of Companies (ROC). Only Tamil Nadu & Maharashtra have two ROC.  

The procedure to change the registered office from one State or Union Territory to another is specified under the provision of Section 12(4) read with Rule 30 of Companies(Incorporation) Rules, 2014 which is in step by step form is as follow:-

1. CONVENING BOARD MEETING- Hold Board meeting as per the provisions of SS-1 & Companies Act 2013:-

• Consider proposal for shifting of registered office.
• Alteration of Memorandum of Association (MOA) & Articles of Association(AOA), of Company.
• Approving the notice calling Extra Ordinary General Meeting and fix its, date, day, time, venue etc. 
• Authorizing  Company Secretary or Director to move application to Regional Director.

2. CONVENING EXTRAORDINARY GENERAL MEETING- Pass Special Resolution and file the certified copy of the  same in E Form MGT-14 with in 30 days of its passing at Extra Ordinary General Meeting with the following attachments- 

• Altered copy of MOA & AOA
• Copy of special resolution along with explanatory statement. 

3. PUBLICATION of ADVERTISEMENT- The  Company, shall atleast 30 days before filing application to Central Government (Regional Director) , publish an advertisement in E Form INC-26 in two newspapers -

1) in the vernacular newspaper in the vernacular language ,and

2) in English newspaper with wide circulation in English language

           

           in the state where the registered office is situated.

A copy of such advertisement shall be forwarded to-

• Regional Director,
• Debenture Holders and creditors of the company,
• Registrar of Companies 
• SEBI, in case of listed company,
• Any other regulatory Authority, if Company is regulated by Special law or Act.

4. PREPARATION OF LIST OF CREDITORS AND DEBENTURE HOLDERS- A list of creditors and debenture holders, not less than one month old from filing application for change of registered office, is prepared which shall :-set forth the following details:-

• The name and address of each creditor and debenture holders,
• The nature and amount of debts, claims or liabilities due to them. 

Declaration- Such list of creditors and debenture holders shall be accompanied by Company Secretary and two directors , one of whom shall be the managing director, if any stating-

a) they have made full enquiry into the affairs of the Company and having done so have concluded that the list of creditors are correct and the estimated value given in the list of debt or claim payable on a contingency or not ascertained, are proper estimate of value of such  debt or claim and there are no debts or claims against the company to their knowledge

b) No employee shall be retrenched as a consequence of shifting of registered office from one state to another

5. SUBMIT APPLICATION TO REGISTRAR AND CHIEF SECRETARY- A copy of application shall be submitted to Registrar of Company and Chief Secretary of the concerned State or Union Territory.

6. FILING OF APPLICATION- An application in Form INC-23 shall be filed to Central Government (Regional Director) along with the following enclosures-

a) Copy of altered MOA,

b) Copy of minutes of ExtraOrdinary General Meeting,

c) Copy of Board resolution, Power of attorney or Vakalatnama.

d) Copy of Newspaper advertisement

e) Copy of list of creditors and debenture holders

f) Declaration by Company Secretary or two directors , one of them shall be Managing Director , if any.

g) Copy of acknowledgement of service of application to Registrar and Chief Secretary of State Government /Union Territory.

h) Copy of each objection, if any,  received by Company and its reply to the objection.

In case no objection is received by the company- The application may be put up for orders and the order either approving or rejecting the application shall be passed with in 15 days of receipt of application.

In case objection is received by the Company- The Regional Director shall hold hearing and direct the Company to file an affidavit to record the consensus reached at the meeting and shall approve the shifting within 60 days from filing the application.

* Where no consensus is reached, the Company shall file an affidavit specifying the manner in which the objection is to be resolved with in definite time frame, reserving the original jurisdiction to the objector for pursuing its legal remedy, even after the registered office is shifting, the Central Government(Regional Director) shall pass an order confirming or rejecting the shifting within sixty days from filing of application.

7. ORDER PASSED BY REGIONAL DIRECTOR- The Regional Director shall pass any order as may think fit and can impose such  cost as it may think proper.

8. FILING OF E FORM INC-28- The applicant shall file an E form  INC- 28 with Registrar for registration of order passed by Regional Director,  within  30 days of receipt of certified copy of order confirming shifting of registered office. 

9. FILING OF E FORM INC-22-  The notice of change of registered office shall be file in E form -22 along with requisite fees within a period of 15 days from confirmation of shifting of registered office with following documents- 

• the registered document of the title of premises of the registered office in the name of company,
• notarized copy of lease or rent document along with rent receipt of mot less than one month old, in the name of Company,
• authorization from owner or authorized occupant to use premises as registered office,
• utility bill depicting the address of the premises in the name of owner or authorized occupant which is not 2 months old. 

NOTE- The shifting of registered office shall not be allowed if any inquiry, inspection or investigation, has been initiated against the company or any prosecution has been pending against the company under the Act. However, on completion such inquiry, inspection or investigation , the shifting shall be allowed. 

For any clarification, drop email @ shailja.tiwari16@gmail.com

SECTION 8 COMPANIES- A COMPLETE BACKGROUND

Section 8 Companies (Section 25 of Companies Act 1956) , can be registered under Companies Act 2013 having a charitable purpose with limited liability but without the addition of the word 'Limited' or 'Private Limited' to its name. 

In India, there are basically following three forms of Non Profit organisations(NGO) registered under various Acts-

• Trusts formed under India Trust Act 1882,
• Societies registered under Section 20 of Societies Registration Act 1860,
• Section 8 Companies under Companies Act 2013.

 SECTION 8 COMPANIES

• Any person or association of persons desirous of incorporating with limited liability having following features:-

a) has objects like promotion of commerce, arts, science , education, research, social welfare, religion, charity, protection of environment or any such other object.

b) apply its profit or other incomes in promoting its objects.

c) prohibition on the payment of dividends to its members.

may make an application to grant registration under Section 8 of the Act.

• The Company under Section 8 shall have all privileges and liabilities as any other company registered under any other provisions of the Act. 

ALTERATION OF MEMORANDUM & ARTICLES OF ASSOCIATION OF SECTION 8 COMPANY

Any alteration in any provision of Memorandum of Association or Articles of Association of Section 8 company can only be done with the prior approval of Central Government. 

PROCEDURE FOR INCORPORATING SECTION 8 COMPANY

1. An application shall be made to Registrar of Companies in Spice+(Simplified Proforma for Incorporating Company Electronically- INC-32) along with such fees as prescribed under rules.

2. The said application shall be accompanied by following documents-

• The Memorandum and Articles of Association  of the proposed company in Form No.- INC -13. 
• A declaration in Form No. INC-14 by an Advocate, Chartered Accountant , Cost Accountant, Company Secretary in Practice , that the memorandum and articles are in conformity with the  Act and Rules made there under and all the requirements under the Act & Rules have been properly complied regards to section 8.
• An estimate of income and expenditure for next 3 years specifying source of income and objects of expenditure.
• A declaration by all applicants in Form No. - INC- 15

ISSUANCE OF LICENSE-  The Central Government may by  licence allow the person or association of person to register as Section 8 company and thereupon, Registrar shall register the company , if  the application is complete in all form and impose such conditions as think fit, 

CONVERSION OF SECTION 8 COMPANY INTO A COMPANY OF ANY OTHER KIND

1. Special resolution- A company registered under section 8 with intend to convert itself into a company of any other kind shall pass a special resolution at a general meeting for approving such Conversion

2. Explanatory Note- The explanatory statement annexed the notice convening the extraordinary general meeting shall set out the following reasons for such conversion

A) The date of incorporation of the company,

B) The principal object 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 out  as Section 8 company,

D) The principal or main objects of the company are proposed to be altered , what would be the ultimate object and the reason for the alteration

E) The privileges or confessions currently enjoyed by the company such as tax Exemptions , approval for receiving donations or contributions , land and other immovable property if any acquired by the company at concessional rates,

F) Details of impact of the proposed conversion on the members of the company including details of any benefits that may accrue to the member as a result of the conversion.

3. Filing of Form No. MGT-14 with Registrar of Companies- A certified true copy of the special resolution along with a copy of notice and explanatory statement shall be filed with the registrar in form No.- MGT 14 with in 30 days of passing such resolution. 

4. Filing of Form No. INC.18 with Regional Director- The company shall file an application in with the Regional Director in Form No. INC.18  along with such fees as may be prescribed. 

The application shall be accompanied by :-

• Certified true copy of the special resolution ,
• Copy of notice convening the meeting including the explanatory statement ,
• Proof of serving the notice to all the authorities.

5. Copy of application to Registrar of Companies- A copy of the application filed with the Regional director shall also be filed with the concerned Registrar of Companies.

REVOCATION OF LICENCE

1) The Central Government is empowered to pass an order for revocation of license granted to a company registered under this section if it contravenes any of the requirements of this section or any of the conditions subject to which a license is issued or the affairs of the company are conducted fraudulently or in a manner violative of the objects of the company and prejudicial to public interest.

2) No such order can be passed unless the company is given a reasonable opportunity of being heard.

3) A copy of every such orders should be given to registrar of companies.

4) The Central Government is empowered to pass an order either to wound up the company under this act or amalgamated with another company registered under this section.

• If the company is amalgamated, then Central Government may by order provide for such amalgamation to form a single company which such Constitution , properties, right ,interest , authorities and privileges along with liabilities , duties and obligations as may be specified in the order.
• If the order of winding up of a company has been passed under this section, then after the satisfaction of its debts and liabilities, any asset may be transferred to another company registered under this act section and having similar objects subject to such conditions as the tribunal may impose or maybe sold and the proceeds thereof shall be credited to the Insolvency and Bankruptcy fund formed under section 224 of the Insolvency and Bankruptcy Code 2016.

CONSEQUENCES OF NON COMPLIANCE 

If the company makes any default in complying any of the provisions of this section then the :- 

Company - shall be liable for the fine not less than 10,00,00 rupees extending up to 1,00,00,000 rupees .

Directors and every Officer in default - shall be punishable  with imprisonment for a term up to 3 years or with fine Not less than 25,000 rupees  but which may extend to 25,00,000 rupees or with both

If it is proved that the affairs of the company were conducted fraudulently then  every officer in default shall be liable for action against section 447. 

CERTIFICATION AND REGISTRATIONS 

1) 80G CERTIFICATE FROM INCOME TAX- 80 G certificate is issued to section 8 company by the income tax department. It gives the donor of section 8 company an exemption for his donation under  the income tax.

2) 12A REGISTRATION-  12A is a one time for registration which exempts the Section 8 company to pay income tax on the income earned by such company.

3) FCRA REGISTRATION- FCRA registration is required for those Section 8 companies which are desirous of receiving foreign contribution for the objects specified in the memorandum of association. 

For any query or clarifications , drop email at shailja.tiwari16@gmail.com