Recent Amendments to the Companies (Incorporation) Rules, 2014

By Husain Kader

The Ministry of Corporate Affairs (MCA) has issued a recent notification dated 16th October, 2019 notifying the Companies (Incorporation) Eight Amendment Rules, 2019 to amend the Companies (Incorporation) Rules, 2014.

The amendments are summarised below:

Sr No. Particulars Erstwhile Provision After Amendment Remarks
1. Undesirable Names

 

Rule 8A

Earlier if the name of the proposed company included a registered trademark then approval from the owner or the applicant for registration of trademark had to be obtained by the promoters of the proposed company before making name application to ROC. Now the option to get approval from the applicant for registration of trademark has been removed.

 

Now approval has to be obtained from the owner only.

The Owner and applicant for registration of trademark could be two different persons and therefore earlier there was an option.

 

Now the rule has been made more stringent and the approval of the present owner is necessary.

2. Active Company Tagging Identities and Verification (ACTIVE)

 

Rule 25A

Earlier if a company was marked as ACTIVE-non-compliant than unless e-Form ACTIVE was filed the company was not able request for any changes in director information by filing Form DIR-12 except in case of cessation. Now if a company is marked as ACTIVE-non-compliant than it will not be able to request for any changes in director information except in the following cases:

 

1.   cessation of any director; or

2.   appointment of directors in a company where total number of directors fall below the minimum limit as provided in the Act on disqualification of all or any of the director; or

3.   appointment of any director in such company where DINs of all or any of its director(s) have been deactivated; or

4.   appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate Tribunal.

MCA has liberalized the ACTIVE rule to allow changes to be made to the information of directors to allow appointment or cessation of directors where it becomes absolutely necessary  in cases which may  lead to non-functioning of the Board of Directors of a company or non-compliance of the Companies Act.
3. Shifting of registered office within the same State

 

Rule 28

After amendment the MCA has added the following rules to the present provisions:

 

1.   The Regional Director (“RD”) shall examine the application seeking confirmation from the RD for shifting the registered office within the same State from the jurisdiction of one ROC to another ROC and the application may be put up for orders without hearing and the order either approving or rejecting the application shall be passed within 15 days of the receipt of application complete in all respects; and

 

2.   The certified copy of order of the RD, approving the alternation of MOA for transfer of registered office company within the same State, shall be filed in Form No. INC-28 along with fee with the Registrar of State within 30 days from the date of receipt of certified copy of the order.

The Rule has been made more stringent by the MCA whereby now an order shall be passed by the RD after examination of all the submitted documents and such order shall have to be filed in Form INC-28 (which is an added compliance to be followed) for shifting of registered office.

 

Important Update – Annual Filings

 

As per a recent notification dated October 29, 2019, the Ministry of Corporate Affairs (“MCA”) has provided relief to the stakeholders by relaxing additional fees and extending the last date of filing for the following for the financial year which ended on March 31, 2019 to:

  1. Filing of forms for financial statements – November 30, 2019; and
  2. Filing of annual returns – December 31, 2019.

On failure to file the forms by the above due dates, an additional fees of INR 100/- per day for each day of default will become applicable.

COMPANY INCORPORATED ON OR BEFORE DECEMBER 31, 2017? IMPORTANT MCA NOTIFICATION

However, the Companies which have not filed Financial Statements or Annual Returns or both (except case recorded under management dispute) shall not be able to file the said e-Form ACTIVE.

Companies Excluded from the requirement of filing the said e-Form:

  • Struck off Companies
  • Companies under the process of Strike off
  • Companies under Liquidation
  • Companies Amalgamated
  • Companies Dissolved

Failure to File the said e-Form ACTIVE (INC-22A):

1) If the Company fails to file the said e-Form ACTIVE on or before the due date then such Company shall be marked as “ACTIVE-NON-COMPLIANT” and shall be liable for action under Section 12(9) of the Companies Act, 2013.

2) The following e-Forms shall be barred from taken on record:-

  • SH-7 (Change in Authorized Capital)
  • PAS-3 (Change in paid-up Capital)
  • DIR-12 (Change in Director except cessation)
  • INC-22 (Change in Registered Office)
  • INC-28 (Amalgamation, de-merger)

3) Penalty of INR 10,000/- after due date.

FILING FEES:

On or before June 15, 2019 – Nil

After June 15, 2019 – INR 10,000/-

Mandatory Attachment to e-Form ACTIVE (INC-22A):

Photograph of Regd. Office showing the external building and inside office and also showing therein at least one Director/KMP who has affixed his/her DSC to the said e-Form.