ICAI SCORE 17 - CPE Lecture Series

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1 ICAI SCORE 17 - CPE Lecture Series Partner M/s. S Dhanapal & Associates A Firm of Practising Company Secretaries, Chennai

2 INTRODUCTION TO SPICe Introduced vide Companies (Incorporation) fourth Amendment Rules, Rule dated w.e.f Rule 38 substituted vide Companies (Incorporation) Fifth Amendment Rules, 2016 dated we.f Integrated process for incorporation vide Form INC 29 omitted we.f

3 WHAT IS SPICe SIMPLIED PROFORMA FOR INCORPORATING COMPANY ELECTRONICALLY

4 COMPANIES WHICH CAN BE INCORPORATED UNDER SPICe OPC Section 8 Co. Upto 7 subscribers Private Co. Public Co.

5 SERVICES WHICH CAN BE AVAILED IN SPICe DIN Name of Company Verification of Registered Office PAN & TAN Incorporation Appointment of Directors

6 PROCEDURE FOR INCORPORATION

7 FORMS INVOLVED Exempt in few cases Optional INC 1 INC 32 Mandatory in all cases INC 33 INC 34 INC 22 Applicable where RO is not identified at incorporation

8 STEP 1 DIGITAL SIGNATURE CERTIFICATE DSC REQUIRED FOR At least 1 proposed director (to sign INC 32) + All subscribers (for digitally signing emoa and eaoa)

9 STEP 2 DIRECTOR IDENTIFICATION NUMBER DIN REQUIRED FOR At least 1 proposed director (to sign INC 32) For other directors (up to 3) DIN can be applied in INC 32 DSC to be registered with DIN for director who has to sign INC 32

10 STEP 3 NAME AVAILBILITY INC 1 INC 32 Upto 6 names Only 1 name Available for 60 days At the time of incorporation Fee: Rs. 1000/- Fee: Rs. 500/-

11 STEP 3 NAME AVAILBILITY Name should not be undesirable in terms of Rule 8 of Incorporation Rules, 2014 (similar name, trademark, generic etc.) INC 1 and INC 32 are both processed at CRC

12 STEP 4 APPLICATION FOR INCORPORATION Prior to preparing forms, all documents to be attached as scanned attachments to be prepared, signed and sealed as required. Latest version of forms to be downloaded and filed INC 32 07TH JUNE 2017 INC 33 26TH FEBRUARY 2017 INC 34 26TH FEBRUARY 2017

13 STEP 4 APPLICATION FOR INCORPORATION Attachments to INC 32: Affidavit and declaration by first subscriber(s) and director(s) in form INC 9 Declaration by professional in form INC 8 Proof of Office address (Conveyance/ Lease deed/rent Agreement etc. along with rent receipts) + Copy of the utility bills (not older than two months) Consent to act as director in form DIR 2 Address and ID proof for those directors / subscribers, not having DIN Physical MOA and AOA, where e-moa and E-AOA are not applicable

14 STEP 4 APPLICATION FOR INCORPORATION Requirement of emoa and eaoa vs. physical MOA & AOA ELECTRONICALLY Individual subscribers being PHYSICALLY Indian Non-individual nationals first subscribers are based outside India Individual subscribers who are foreign Individual foreign subscribers do not nationals provided they hold valid DIN possess a valid business visa and DSC and also submit a proof of a valid business visa Non-individual subscribers based in India Section 8 companies

15 STEP 4 APPLICATION FOR INCORPORATION Signing requirements - Digitally INC 32 One Director (having DIN+DSC) Professional engaged in Incorporation INC 33 & INC 34 All subscribers Witness to subscribers signature

16 STEP 4 APPLICATION FOR INCORPORATION FILING FEES Fee for Form SPICe (INC-32): Rs. 500/AOA & MOA As per authorised capital PAN: Rs. 107/TAN: Rs. 63/- STAMP DUTY (Based on State of RO) In Chennai: Stamp Duty Fee For Form SPICe (INC-32):Rs. 20/ Stamp Duty fee for MoA: Rs. 200/ Stamp Duty fee for AoA: Rs. 300/

17 STEP 5 APPLICATION FOR PAN & TAN To be applied mandatorily along with incorporation. Once fees is paid and challan is generated, prefilled Forms 49A and 49B can be downloaded. Forms to be digitally signed Same director who signed INC 32 To be submitted on MCA portal INC 32 status changes to pending for approval No fees to be paid at this stage Needs to be done within 2 days of filing INC 32

18 PROCESSING OF FORMS As per MCA notification S.O. 1211(E) dated effective the CRC shall process forms pertaining to registration of companies i.e. e-forms (INC-2, INC-7 and INC- 29 along with linked forms INC-22, DIR-12 and URC-1 and any other forms as may be notified by the Central Government)

19 PROCESSING OF FORMS As per MCA notification S.O. 1211(E) dated effective the CRC shall process forms pertaining to registration of companies i.e. e-forms (INC-2, INC-7 and INC- 29 along with linked forms INC22, DIR-12 and URC-1 and any other forms as may be notified by the Central Government). Two resubmissions are permitted total time 30 days

20 STEP 6 CERTIFICATE OF INCORPORATION COI issued in form INC 11 by CRC Bears CIN and PAN (issued by IT department)

21 STEP 7 VERIFICATION OF RO Where correspondence address is not the ROC To be filed within 30 days of incorporation in form INC 22

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23 Practical aspects of incorporation under SPICe Minimum authorized and subscribed share capital required for a private company having share capital is Rs 2/-. In case company has shares of multiple nominal amounts per share, multiple nominal values per share should be entered separated by comma in the field Nominal amount per share. Correspondence address should be of same State as proposed registered office.

24 Practical aspects of incorporation under SPICe A valid ID for company should be given as intimation regarding processing of the eforms, important communication from RoC office shall also be communicated electronically at the ID being mentioned at the time of incorporation. In name of company, do not enter abbreviation like PVT, PVT., (P), LTD and LTD. In case the name is similar to any existing company or to the foreign holding company, then, a certified true copy of No objection certificate by way of board resolution (in case of Indian company) or resolution (in case of foreign company) needs to be attached.

25 Practical aspects of incorporation under SPICe Maximum size for uploading spice form is 6Mb and maximum size allowed for form 49A and 49B is 2 Mb. Upto 2 resubmissions are permitted. Total number of directors (including both 'having' and 'not having' DIN) cannot be more than 20 in number. Directors not having DIN cannot be more than 3 in number. Aadhaar number is mandatory for persons having PAN. For the proposed directors having DIN, KYC norms would not be applicable and no other proof of identity or residential proof shall be required.

26 Practical aspects of incorporation under SPICe Details for Employer registration under Employee State Insurance Corporation (ESIC) can also be provided in SPICe form for employer registration via ebiz service. In case SPICe (INC-32) has been filed with linked filing of emoa (INC33) and eaoa (INC-34) without attaching business visa as required under Rule 13 (5) (d) of the Companies (Incorporation) Rules, 2014, the form is liable to be rejected (Marked as Invalid and Not to be taken on record) without putting for resubmission.

27 FAQs on SPICe Issued by MCA

28 FAQs on SPICe How many names can be applied for in SPICe (INC- 32)? Only one. However, for reservation of a name prior to filing SPICe (INC-32), you may use INC-1 (in which up to 6 names can be proposed) and then input the SRN of approved INC-1 into SPICe. Is INC-22 still required to be filed with SPICe? It is not required to be filed with SPICe (INC-32) if a company is registered with the same address as the address for correspondence (in INC-32). In case the registered address is different, INC-22 is required to be filed within 30 days of its incorporation, for intimating the registered office address.

29 FAQs on SPICe What is the process for obtaining approved e- MOA (INC-33) and e- AOA (INC-34)? The users may obtain approved e-moa (INC-33) and e- AOA (INC-34) through certified copies facility available on MCA. Is a proposed Section 8 company required to file emoa (INC-33), eaoa (INC-34) along with SPICe (INC-32)? No. Section 8 companies are mandatorily required to file MOA and AOA as pdf attachments to SPICe (INC32).

30 FAQs on SPICe Is it mandatory to use emoa and eaoa? Can physical copies of MoA/AoA be signed and attached with SPICe forms? Yes. It is mandatory to use emoa (INC-33) and eaoa (INC-34) in case of the following: - individual subscribers are Indian nationals - individual subscribers who are foreign nationals in case they valid DIN and DSC and also submit a proof of a valid business visa - non-individual subscribers based in India. Physical copies of MoA/AoA is required to be signed and attached in case non-individual first subscribers are based outside India or individual foreign subscribers do not possess a valid business visa. In case physical copies of MoA/AoA is required to be submitted, then emoa/eaoa shall not be attached. Please refer FAQ Q.8 for more details.

31 FAQs on SPICe Whether emoa (INC-33) and eaoa (INC-34) is to be filed with SPICe (INC-32) in respect of non-individual first subscribers who are based outside India? No. In respect of non-individual first subscribers who are based outside India, pdf attachments of apostillised MOA and AOA shall be attached with SPICe (INC-32). Is PAN and AADHAAR mandatory? Yes. The companies (incorporation) rules has liberalized many requirements in respect of Proof of Identity and Proof of residence in respect of Subscribers and Directors. The Companies (Incorporation) third Amendment Rules dated 27th July 2016 has relaxed the mandatory attachment of proof of identity and residence in respect of a subscriber having a valid DIN

32 FAQs on SPICe What are the exceptional scenarios in which pdf attachments (MOA, AOA) should be used instead of emoa, eaoa with SPICe (INC-32)? The table below clarifies the specific scenarios in which the pdf attachments or electronic versions of MoA/AoA can be used with SPICe (INC-32): S. No. Applicant Forms Filing 1 Non-Individual first based outside India 2 Non-Individual first subscriber based in SPICe (INC-32) with linked filing of emoa (INC-33) India and eaoa (INC-34) 3 Indian National being Subscriber other SPICe (INC-32) with linked filing of emoa (INC-33) than director and eaoa (INC-34) 4 Indian National being Subscriber-cum- SPICe (INC-32) with linked filing of emoa (INC-33) Director and eaoa (INC-34) subscriber SPICe (INC-32) with apostillised MOA and AOA as attachments

33 FAQs on SPICe S. No. Applicant Forms Filing 05 Foreign National being Subscriber other than director having valid DIN SPICe (INC-32) with linked filing of emoa (INC-33) and eaoa (INC-34) alongwith Valid Business Visa to be submitted. In case Business Visa is not available, apostillised MOA and AOA shall be attached and in such cases, emoa (INC33) and eaoa (INC-34) are NOT acceptable. 06 Foreign National being Subscriber-cumDirector having valid DIN SAME AS ABOVE 07 Foreign National being Subscriber-cumDirector not having valid DIN SPICe (INC-32) with apostillised apostillised AOA as attachments. MOA and Note: In all the above mentioned cases, the maximum number of subscribers allowed shall be 7 for filing of SPICe form. Stakeholders may kindly note that in case SPICe (INC-32) has been filed with linked filing of emoa (INC33) and eaoa (INC-34) without attaching business visa as required under Rule 13 (5) (d) of the Companies (Incorporation) Rules, 2014, the form is liable to be rejected (Marked as Invalid and Not to be taken on record) without putting for resubmission.

34 FAQs on SPICe Can I attach MOA and AOA for few subscribers and form INC-33(eMOA) and INC-34(eAOA) for other subscribers for same company? No. In case the proposed company is required to file MOA and AOA due to any of the above mentioned conditions, then SPICe (INC-32)shall be filed ONLY with MOA and AOA. In such cases, the proposed company is NOT required to file the emoa and eaoa under any circumstances. Can SPICe be used for incorporation of producer companies? No. For incorporation of producer companies, unregistered companies and companies being formed with more than 7 subscribers, new version of INC-7 shall be used.

35 FAQs on SPICe If a body corporate is one of the subscribers/ promoters, can DSC of an authorized Director be affixed? Yes. Can, foreign subscribers file SPICe (INC-32) or are they required to file in INC-7? Yes, foreign subscribers having valid DIN can file SPICe(INC-32) with emoa(inc-33) and eaoa(inc-34) as linked forms if they have a valid business visa. However, in case of foreign individual subscribers without a valid DIN, form INC-32 shall be used with physical MoA and AoA.

36 FAQs on SPICe In SPICe AoA (INC-34) if additional Article is required, how to enter the same? SPICe AoA (INC-34) has facility for adding, modifying, and deleting Articles. Can we enter the conditions of private company as required under Section 5 of the Companies, Act, 2013 in SPICe AoA(INC-34)? Yes, SPICe AoA (INC-34) has facility for adding, modifying, and deleting Articles.

37 FAQs on SPICe Can we enter the names of first directors as required under Companies Act, 2013, in SPICe AoA (INC-34)? Yes, SPICe AoA (INC-34) has facility for adding, modifying, and deleting Articles. What if there are more than seven subscribers to MoA and AoA? INC-7 shall be used.

38 FAQs on SPICe Can we enter the names of first directors as required under Companies Act, 2013, in SPICe AoA (INC-34)? Yes, SPICe AoA (INC-34) has facility for adding, modifying, and deleting Articles. In case of subscriber to the memorandum is a foreign national residing outside India, his signatures and address etc. shall be witnessed by a Notary Public/Embassy/Consulate offices of Embassies as per the Rule 13 of the Companies (Incorporation) Rules, In such cases, how the DSC of such a witness be affixed? In such cases, SPICe (INC-32) shall be filed with manually signed and duly attested MoA and AoA.

39 FAQs on SPICe Is DSC mandatory for Subscribers? Yes, DSC is mandatory for all subscribers and witnesses in emoa(inc-33) and eaoa(inc-34). emoa and eaoa shall be used only where the maximum number of subscribers do not exceed 7. In case the number of subscribers are more than 7, INC-7 shall be used and DSC is not mandatory in such cases. Whether subscribers' photo is required in SPICe forms? No. Subscribers photo is not required.

40 FAQs on SPICe How many resubmissions are permitted for SPICe forms? Two. Can OPCs be incorporated using SPICe forms? Yes. Form INC-2 will no longer be available for filing. Can LLPs be incorporated using SPICe forms? No.

41 FAQs on SPICe What is the word limit for writing objects in emoa? For main Objects (Field 3(a)), character limit is 20,000 and for furtherance of objects (Field 3(b)), it is 1,00,000 characters. Please clarify on attestation requirements in respect of foreign companies wanting to form a subsidiary in India? Attestation requirements will be as per Rule 13 of the Companies (Incorporation) Rules, 2014.

42 FAQs on SPICe Is SPICe emoa (INC-33) and SPICe eaoa (INC-34) to be uploaded separately? SPICe emoa and eaoa have to be uploaded as Linked Forms to SPICe (INC-32). What if the subscribers to emoa and eaoa are at different places as only one witness is provided? emoa and eaoa would be witnessed after all subscribers have signed as is happening presently.

43 FAQs on SPICe Is refund applicable if SPICe forms get rejected? Yes. What is the maximum upload size of SPICe forms? 6 MB. Can NIDHI Company be incorporated using SPICe forms? Yes. Is it mandatory to apply for PAN and TAN along with SPICe(INC-32)? Yes.

44 FAQs on SPICe What is the Fee payable for PAN and TAN? For PAN-Rs.107 and TAN-Rs.63 becomes payable. On approval of SPICe how PAN & TAN is communicated to the user? On approval of SPICe forms, the Certificate of Incorporation (CoI) is issued with PAN as allotted by the Income Tax Department. An electronic mail with Certificate of Incorporation(CoI) as an attachment along with PAN and TAN is also sent to the user. Further PAN card shall be issued by the Income Tax Department.

45 FAQs on SPICe Whether fee towards PAN and TAN is payable separately? No. A consolidated challan gets generated at the time of filing SPICe(INC-32) which shall contain applicable fee towards (i) Form Fee (ii) MoA (iii) AoA (iv) PAN (v) TAN

46 FAQs on SPICe What is the next step after filing SPICe forms and making payment? The user is required to visit the MCA portal and access the service Submit application for PAN and TAN. He has to download 49A(PAN) and 49B(TAN) and upload them on the same screen after attaching his DSC. He has to upload these forms(pan&tan) within 2 days of filing the SPICe form failing which the entire SPICe form would be marked as Invalid and Not to be taken on record. Please provide the contact details of officer responsible if PAN Card is not received by the user? After receipt of Certificate of Incorporation (with PAN indicated therein as allotted by the Income Tax Department) in case of non-receipt of PAN card, stakeholders shall check the status at

47 FAQs on SPICe What is the maximum size of Form 49A and 49B allowed for upload? Maximum size allowed for form 49A and 49B is 2 Mb What are the file naming conventions for 49A and 49 B? Please make sure that the file name does not have any special character. Spaces in file name are also not allowed. Who is authorized to affix digital signatures on 49A and 49B form? Director who has digitally signed Form INC-32 is only authorized to digitally sign Form 49A and Form 49B.

48 FAQs on SPICe Is resubmission of Form 49A (PAN) and Form 49B(TAN) also required in case Form SPICe (INC32) is marked in resubmission? Since Form 49A(PAN) and Form 49B (TAN) is generated from information provided in Form SPICe (INC-32) hence post resubmission of Form SPICe (INC-32), Form 49A (PAN) and Form 49B (TAN) needs to be generated again using service Submit Application for PAN and TAN and submitted again after affixing digital signatures. Form 49A(PAN) and 49B(TAN) is generated blank, what should be the next step? Instead of opening the documents directly please save Form 49A(PAN) and 49B(TAN) to your local directory and then affix signatures to it.

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50 SMITA CHIRIMAR M.Com, F.C.S., DCG (ICSI), LLB Partner M/s. S DHANAPAL & ASSOCIATES Practising Company Secretaries Suite No.103, First Floor, Kaveri Complex, 96/104, Nungambakkam High Road, Nungambakkam, Chennai Ph.No / 57 Cell No Id:Smita.chirimar@gmail.com, csdhanapal@gmail.com Web.