Company Incorporation Under Companies Act, 2013

The Companies Act 2013 (‘Act’) regulates the company incorporation procedure and the provision of the company registration certificate. A company established in India cannot run its business without the registration certificate granted by the Registrar of Companies (ROC). The ROC will issue the registration certificate when the company complies with the provisions of the Act.

The company founders should apply for company registration on the Ministry of Corporate Affairs (‘MCA’) website. The MCA introduced a new company incorporation form, i.e. SPICe+ form, on 23 February 2020 for incorporation of the company. The SPICe+ form applies to all the new companies incorporated after 23 February 2020.

Pre-requisite for Company Incorporation

Certain pre-requisites must be complied with by the company before filing the company incorporation form, which is as follows:

Digital Signature Certificate (DSC)

The company registration process is entirely online. SPICe+ form should be filed on the MCA website. Digital Signature Certificate (DSC) is required to file forms on the MCA website. Thus, all the company’s proposed directors are required to obtain DSC for filing the company incorporation form. Since the e-MOA (Memorandum of Association) and e-AOA (Articles of Association) are to be filed with the SPICe+ form, the subscribers of the MOA and AOA must also obtain DSC.

Selection of Name

The company founders and proposed directors must select an appropriate name for the company. The ROC will reject the company name if it is similar or identical to the name of an already registered company. The company name should also not be similar to a registered trademark. Thus, it is better to conduct a trademark search before finalising the company name. 

It should also not contain the words or expressions prohibited to use in a company name as provided under the Company (Incorporation) Rules, 2014. The company founders or promoters should first apply for reservation of the company name in Part-A of the SPICe+ form. The ROC will either approve or reject the name. If the ROC rejects the name, the company founders must re-apply with a different name and get the company name approval from the ROC.

Members and Directors

A One Person Company (OPC) should have a maximum number of one members and a minimum of one proposed director for applying to company registration. A private limited company must have a minimum of two members and two directors. A public limited company must have a minimum number of seven members and three directors before applying for registration.

Process for Company Incorporation Under Companies Act, 2013

Below is the process of applying for company incorporation, i.e. SPICe+ form:

Login to MCA

A promoter or proposed director of a company must first log in to the MCA website to apply the SPICe+ form. To log in, the proposed director or promoter (applicant) must first create an account on the MCA website. After the account is created, the applicant will get the login details. After that, they can log in to the MCA website with the login details to file the company incorporation form and, subsequently, the annual compliance forms after the company is registered.

The process to create an account on the MCA form is as follows:

• Clicking on the ‘Sign In/Sign Up’ option on the top right-hand side of the homepage. On the next page, click on the ‘Register’ button.

• Next, select the ‘User Category’ as ‘Business User’, select the ‘User Role’, enter the PAN number, and click on the ‘Next’ button. Enter the personal, contact, and login details and click the ‘Create My Account’ button. 

• An OTP will be sent to your mobile number. Enter the OTP and click on the ‘Submit’ button. A registration confirmation message will be sent to your email address and displayed on the screen.
• Click on the ‘Sign In/Sign Up’ button on the homepage. Enter the user ID and password and click on the ‘Login for Company Filing’ option.

Fill Part-A of SPICe+ Form

After logging into the MCA website, the applicant should click on the ‘MCA Services’ option on the homepage. Next, the ‘SPICe+’ option should be selected under the’ Company Services’ heading. On the next page, select the ‘New Application’ option. The SPICe+ Part-A form will appear as shown below. 

The company name must be reserved in this section. The applicant must select the ‘Type of Company’, ‘Class of Company’, ‘Category of Company’ and ‘Sub-Category of Company’. Enter the ‘Main division of industrial activity of the Company’, i.e. mention the code of the industrial activities. Next, enter the ‘Particulars of the proposed or approved name’. Click on the ‘Auto-Check’ button and then the ‘Submit’ button.

An applicant can choose to reserve the proposed name first and later file the Part-B of the SPICe+ form. A maximum of two names can be applied to the SPICe+ form when the applicant chooses to fill the Part-B of the SPICe+ form later. Out of two proposed company names, the ROC will approve a single name as available by the Central Registration Centre (CRC). 

The approved name will be reserved for 20 days from the approval date, within which the applicant should fill the SPICe+ form Part-B. When the applicant does fill the Part-B SPICe+ form within 20 days, the entire application will be rejected, and the applicant must re-apply Part-A SPICe+ form for name reservation. When the applicant chooses to fill the whole incorporation application at one go, i.e. SPICe+ Part-A and Part-B together, then only one name can be entered in the Part-A SPICe+ form. 

Fill Part-B of SPICe+ Form

The applicant must enter the details in the Part-B SPICe+ form after filling the Part-A SPICe+ form. When the applicant chooses to fill the Part-B SPICe+ form later, i.e. after name approval from ROC, the applicant can click on the ‘Fill’ button available against the SPICe+ Part-A SRN displayed on the dashboard and click on the ‘Proceed’ button. 

The following details must be filled in the Part-B SPICe+ form:

• Nature of the business
• Authorised capital and paid-up capital
• Company registered office address
• Company Email ID
• Details of directors and subscribers
• Shares held by subscribers
• Details for PAN and TAN 
• Business/profession code
• Name, membership, address, associate or fellow of professional (CA, CMA, CS, Advocate)

Part-B SPICe+ form is a consolidated form through which an applicant can apply for various registrations required for a company. An applicant can file for the following registrations on the SPICe+ form:

• Company incorporation
• DIN (Director Identification Number) application
• PAN (Permanent Account Number) application
• TAN (Tax Deduction Account Number) application

Fill AGILE-PRO Form

The AGILE-PRO-S form is an application for registration of Employee State Insurance Corporation (ESIC), Goods and Service Tax Identification Number (GSTIN), Employees’ Provident Fund Organisation (EPFO), the opening of bank account, Professional Tax Registration (in Karnataka, Maharashtra and West Bengal) and Shops and Establishment Registration Number. The SPICe+ form should accompany the AGILE-PRO-S form.

Upload SPICe+ Form

After filling up the Part-B SPICe+ form, the applicant should upload the required documents. Then the applicant has to carry out a ‘pre-scrutiny’ check. After the ‘pre-scrutiny’ is successful, the applicant should click on the ‘Submit’ button. A confirmation message is displayed upon submission of the form. Next, the applicant should download the PDF of the submitted Part-B SPICe+ form for affixing the DSC.

The applicant should upload the Part-B SPICe+ on the MCA website. A Service Request Number (SRN) is generated to make the fee payment toward company incorporation. After the applicant pays the company incorporation fees, the form will be processed. The ROC will examine the company application form, i.e. SPICe+ form and grant the Certificate of Registration upon satisfaction of the correctness of the application.

Documents to be Attached with SPICe+ Form

The documents required to be attached with the SPICe+ form are as follows:

• e-MOA and e-AOA
• Declaration by the first directors and subscribers 
• Proof of company office address
• A resolution passed by the promoter company
• Copy of utility bills
• The interest of first directors in other entities
• Proof of identity and address of subscribers
• Consent of Nominee (INC–3) (in case of OPC)
• Proof of identity and address of the nominee
• Proof of identity and address of the applicant
• Copy of certificate of incorporation of a foreign body corporate (if any)
• Optional attachments (if any)

The documents required to be attached for AGILE-PRO are as follows:

• Proof of principal place of business
• Proof of appointment of the authorised signatory for GSTIN 
• Proof of identity and address of authorised signatory for opening a bank account
• Specimen signature of the authorised signatory for EPFO

Precautions For Filing Incorporation Application

The precautions to be taken while filing the SPICe+ form is as follows:

• Director and the professional should digitally sign the company incorporation form 
• DSC must be validated
• Proposed directors should not be disqualified under the provisions of the Companies Act, 2013
• The size of the documents attached should be within the prescribed limit 
• Uploaded documents should be legible
• The maximum attachment size in SPICe+ form is 6 MB for each PDF form
• All copies of documents should be self-attested by respective directors 
• Documents for proof of identity – Driving license, PAN, Voter ID card or passport
• Documents for address proof – Voter ID, bank statement, utility bills not older than two months (telephone bill, electricity bill or mobile bill)

Commencement of Business

Every company incorporated having a share capital cannot commence business or exercise borrowing powers if it does not comply with the below conditions:

• The director should file a declaration in form INC-20A with the ROC within 180 days of the incorporation of the company verified by a CA/CS/CMA in practice that every subscriber to the MOA has paid the value of the agreed shares on the date of filing of declaration
• The company has filed for verification of its registered office with the ROC in form INC-22 within 30 days of the incorporation date

A company founder or promoter must apply the company incorporation form, i.e. SPICe+ form, with ROC for legally establishing the company. The incorporation of the company is entirely online. After submitting the company incorporation form on the MCA website, the ROC will examine the form and documents and issue the Certificate of Registration.

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice. It should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.
 

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