SPICe – Company Incorporation in India
By Melissa Cyrill
India’s Ministry of Corporate Affairs (MCA) recently introduced the SPICe Form INC-32, which stands for Simplified Proforma for Incorporating Company Electronically. The new form follows from the 2015 merger of securing allotment of the Director Identification Number (DIN), name approval, and incorporation application within a single process through Form INC-29 (under the amended Companies Act, 2013). In October this year, the MCA took a step further and established the ‘Companies (Incorporation) Fourth Amendment Rules, 2016’ to facilitate this integration via the electronic format through the SPICe Form INC-32, the e-Memorandum of Association (eMOA) in Form INC-33, and the e-Articles of Association (eAOA) in Form INC-34, besides few other changes.
With the latest amendments, the government will be able to provide and regulate fast and efficient incorporation services within stipulated time frames, in line with international best practices.
Replacement of Form INC-29 and INC-7 with Form INC-32: Form INC-29 is now substituted by Form INC-32, which is similar except for a few minor changes relating to reporting requirements. The corporate affairs ministry has branded this form as SPICe, to denote the simplified and digital format of the process for company incorporation. The subscribers and witnesses of the concerned establishment will need to apply for their Digital Signature Certificate (DSC) for use in in SPICe MOA and SPICe AOA. SPICe also allows for the provision to apply for company incorporation with a pre-approved company name.
Separate e-Forms for MOA (INC-33) and AOA (INC-34): Unlike the prevailing procedure, the Memorandum of Association (MOA) and Articles of Association (AOA) forms drafted in the MS Word format will no longer need to be attached with Form INC-29. Instead, filings of the MOA in e-Form INC-33 and AOA in e-Form INC-34 will be linked with SPICe (Form INC-32), except for not-for-profit associations formed under Section 8 of the Companies Act, 2013.
It is important to note that the formats of the electronic Memorandum/Articles of Association remain the standard versions according to the Companies Act of 2013.
Conversion Procedure: Among the changes in incorporation rules by the MCA, is the procedure for the conversion of a company limited by guarantee (other than those registered under Section 25 of the Companies Act of 1956 or under Section 8 of the Companies Act of 2013) into a company limited by shares.
This is prescribed in Rule 39 of the Companies (Incorporation) Fourth Amendment Rules, 2016, which came into effect on November 1. The new procedure notes the following:
- A company other than a company registered under section 25 of the Companies Act, 1956 or section 8 of the Companies Act, 2013 may convert itself into a company limited by shares.
- The company seeking conversion shall have a share capital equivalent to the guarantee amount.
- A special resolution is passed by its members authorizing such a conversion, omitting the guarantee clause in its Memorandum of Association and altering the Articles of Association to provide for the articles as are applicable for a company limited by shares.
- A copy of the special resolution shall be filed with the Registrar of Companies in Form MGT- 14 within thirty days from the date of passing of the same along with the fee as prescribed in the Companies (Registration Offices and Fees) Rules, 2014.
- An application in Form INC-27 shall be filed with the Registrar of Companies within thirty days from date of the passing of the special resolution enclosing the altered MOA and AOA and a list of members with the number of shares held aggregating to a minimum paid up capital, which is equivalent to the amount of guarantee until a point provided by its members.
- The Registrar of Companies shall take a decision on the application filed under these rules within thirty days from the date of receipt of the completed application. Upon the approval of Form INC-27, the company shall be issued with a certificate of incorporation in Form INC-11B.
Insertion of New Forms INC-11B and INC-27: Under the amended rules, Form INC-11B (Certificate of Incorporation pursuant to conversion of a company limited by guarantee into a company limited by shares) shall be inserted after Form INC-11A.
Also, Form INC-27 will be substituted with the new version, which deals with the conversion of a public company into a private company or a private company into a public company, the conversion of an unlimited liability company into a company limited by shares or guarantee, and the conversion of a guarantee company into a company limited by shares.
New Filing Process
After applying for the Digital Signature Certificate, the directors need to apply for the Director Identification Number (DIN). A maximum of three directors can apply for the same while filing form INC-32 itself. Once processed and the company is incorporated, a Corporate Identity Number (CIN) will be provided along with the issuance of the DINs to the proposed directors. The company’s Employees’ State Insurance (ESI), Tax Deduction Account Number (TAN), and Permanent Account Number (PAN) can also be obtained via the SPICe application form. The mandatory documents that need to be submitted include address and identity proof, affidavits and declarations (by subscribers and directors), No Objection Certificates (NOCs), and other appropriate approval certificates as briefed in the form.
The new incorporation process follows international best practices and will simplify and speed up the process for incorporating companies in India, which currently takes about four weeks. The move is part of the Indian government’s ongoing efforts to improve the ease of doing business in the country through the automation and digitization of regulatory processes. Implementation and awareness of the changed requirements are key for the transition to be effective and to boost India’s business environment. Since the changes to the incorporation rules itself were made after the World Bank’s assessment period for 2016-17, its impact will only be reflected in the subsequent annual assessment next year.
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