This blog is inscribed by Amrusha Sengupta.
A Company comes into existence after it has been incorporated under the Companies Act, 2013 or any earlier Companies Act. Every Company before starting its business transaction must get itself incorporated. Certain preliminary decision needs to be made at the time of incorporation whether it will a private company or a public company, what would be the object of the company, how much capital will be invested in that company and many other things.
Section 7 of the Companies Act, 2013 states that the documents which are required for the incorporation of a company must be taken to the Registrar of Companies, he will make an inquiry as to whether all the documents have been duly filed or not and if the registrar is satisfied then he retains and registers the memorandum of association of a company and other relevant documents. After that a certificate of incorporation is issued by the Registrar of Companies apart from that it also issues a corporate identity number which the confers the status of separate legal entity to a company.
Once the Company id registered or incorporated it takes birth and the Certificate of Incorporation is also known as the birth certificate of Company.
Procedure Involved During Incorporation
- As per Rule 9 of the Companies (Incorporation) Rules, 2014 an application for reservation of name has to be made through form no INC-1.
The Name of the Company
- Must not be identical to an already registered company
- It should not be offensive towards any group of a society
- It should not be undesirable by the Central Government
- The Company shall not us any name or symbol which creates an impression that the company is having patronage of Central Government or State Government..
- Rule 12 of the Companies ( Incorporation) Rules, 2014 states that an application for incorporation must be filed with the Registrar of Companies in the form INC -2 in case of One person Company and for other companies it is form no INC – 7.
- Rule 14 of the Companies (Incorporation) Rules, 2014 states that a declaration from a practising advocates or Chartered Accountant or Cost Accountant or Company Secretary must be filed. The declaration states that the company has fulfilled all the compliances and the declaration shall be filed in the form no INC-8.
- An affidavit has to be filed by each subscribers of memorandum stating that they are not convicted of any offence in connection with the promotion or is not guilty of any fraudulent activity or breach of duty of the company under this Act or any other Act, This affidavit has to be filed in the form no INC -9.
- As per Rule 25 of the Companies (Incorporation) Rules, 2014 a verification of the registered office of the company has to be filed in the form no INC -22.
- Particulars of the subscribers such as name date of birth, recent photographs and other things which have been prescribed in Rule 16 of the Companies (Incorporation) Rules, 2014, have to be filed with the Registrar of Companies.
Certain Things For Which Registration Has To Be Done
Though the terms Incorporation and registration of company are synonymous and are often used as a replacement of another, but there meanings in reality are different.
Registration is a process which can be done after incorporation and it is done at various stages in a company. For Example, if there is an alteration in the Memorandum of Association then that alteration has to be registered before the Registrar of companies and this is a process which is generally done after the company has been incorporated. As A company gets a separate legal status after incorporation registration of various things in the name of a company is usually done after it gets incorporated.
A number of things which involves the process of Registration are as followed.
- If a company has made any changes in the Memorandum of Association or Articles of Association then such an alteration has to be registered before the Registrar of Companies, otherwise such a change will be totally invalid if the Registrar of Companies is not aware of such a change.
- If a company is involved in share trading then apart from its incorporation under the Companies Act, 2013 that Company has to register itself under the Security Exchange Board of India ( SEBI) once it is registered then it gets the tag of a “ Listed Company”
- The prospectus which is issued by the companies to invite public offer must be registered and approved by the registrar of companies and apart from that such a prospectus also has to be registered under the Security Exchange Board of India (SEBI).
- There are certain companies which provide financial services apart from their incorporation under the Companies Act, 2013 or Companies Act, 1956 they also need to register themselves under the Reserve Bank of India. Certain Non Banking Financial Companies which are registered under the Reserve Bank of India are Mahindra Finance ltd, Toyota Finance Limited, and Bajaj Finance Ltd etc.
- A company which deals with food production has to register itself under the Food Safety and Standards Authority of India ( fssai) when such a registration is over it h=gets a license then only they can produce food items. For Example, KFC is a food production though it has been incorporated outside India to carry on its business in India but it had to register and obtain a license from fssai to carry on business in India.
- In case of foreign companies though they are incorporated outside India, to carry on business in India they have to register themselves in India with the Registrar of Companies within 30 days of carrying on business in India. The registration of foreign companies has to be filed in form FC- 1. Certain foreign companies functioning in India are Standard Chartered Bank, HSBC, and Google etc.
Comparision Of Incorporation And Registration
|With Incorporation a company comes into existence. It is said to be formed from that very point of time, the process of Incorporation cannot be done once the company has been formed and has already become a separate legal person.||Registration can be done even after the formation of a company, even when a company has acquired a legal status. Example- A company which has been incorporated wants to involve in share trading, now to issue shares it has to register itself under The Security Exchange Board Of India. This is not incorporation.|
|ii) Incorporation is generally a onetime process.||ii) Registration on the other hand can be done by one company for several purposes more than once. Example- A non banking financial company wants to issue share so he has to register itself with SEBI and the Company can register itself under the RB(Reserve Bank of India) I as it provides financial services, Therefore here the process of registration is more than once.|
|iii) With Incorporation a company gets a separate legal status.||iii) The process of registration does not confer any such status it helps the company in proper functioning and helps the company to achieve its objective.|
|iv) A company is generally incorporated under one statue either Companies Act, 2013 or the Companies Act, 1956.||iv) However a company can register itself under more than one authority even after its incorporation. Example- Britannia Industries Limited is a food production company as it is involved in such business it has a registration under the Food Safety and Standards Authority of India (fssai) apart from this it is also a company which also calls for public offer in stock market therefore it is also registered under the Security Exchange Board of India.|
The author would like to conclude by stating that though we generally use the term “A company has been registered under the Companies Act, 2013” it usually means that it has been incorporated under the Companies Act. Though we use the words incorporation and registration as an alternative word for another they are in reality not alternative words for each other, these two have very different meaning. Though they are synonymous they are not the same.
- Company Law by Dr. Avatar Singh
- Elements of Company Law by ND Kapoor
- Difference between incorporation and registration, www.upcousel.com.
- Company Law Notes in ICSI, Executive Programme.