In India all the corporate related matters are controlled by the Ministry of Corporate Affairs (Government of India). The controlling effects and administrative areas of Indian Ministry of Corporate affairs includes Administration of the Companies Act, 1956 and other related Acts, and Revision of Companies Act, 1956 etc.
Registrars of Companies (ROC) appointed under Section 609 of the Companies Act covering the various States and Union Territories are assigned with the primary duty of registering companies and ensuring that such companies comply with statutory requirements under the Act. These offices function as registry of records, relating to the companies registered with them, which are available for inspection by members of public on payment of the prescribed fee. The Central Government exercises administrative control over these offices through the respective Regional Directors. Website of ministry of corporate affairs.
A Company can be defined as an affiliate group of members united and carrying an unique sort of commercial or industrial enterprise.
It is created by natural person and regarded as artificial person and given life through law to achieve the object for which it is formed.
According to Section 3(1) of the Companies Act, 1956- “Company formed and registered under this act or an existing Company”. An existing company means a group of fellow members united so carry out certain sort of enterprise and authoritatively registered under any of the former company acts.
There are certain distinctions between a company and a Partnership firm; they are;
A company comes into existence only after its registration with accordance to the companies act, 1956 and when it comes to Partnership firm a mere formal registration is not compulsory.
A Company is a legal person (as absolved by Judiciary in many landmark cases) and registered in accordance with law as a single person. A partnership is a collection of individuals.
Two members is compulsory in case of private company, Seven in case of public company and two (minimum) in case of partnership.
Maximum number of person: A public company may have any number of members. In case of private 50 and in case of partnership 20 (10 in case of banking). In a company the shareholders can transfer his share (subject to the proviso given in companies Act) without the consent of other shareholders. In case of partnership, a partner cannot transfer his share without the consent of other partners.
Liability of Members: The liability of the members of a company is limited whereas liability of the partners for debts of a firm is unlimited.
Basic essentials for forming a Company in India:
- A registered business name
- A registered Business office
- Share holders
- Share Capitals
- Certificate of Incorporation
- Company Seal
- Memorandum of Association
- Articles of Association
- Payment of registration and filing fee
The following documents are required to be filed with the Registrar of Companies:
- Memorandum of Association (duly stamped)
- Articles of Association (duly stamped)
- The agreement, if any, which the company proposes to enter into with any individual for appointment as its managing or whole time director or manager.
- A power of attorney (with prescribed stamps).
- A copy of the letter of the Registrar of Companies intimating the availability of the proper name.
- Duly filled form number 18: if desired for change of situation of registered office.
- Duly filled form number 1: (with prescribed stamps) for incorporation of a Company. Duly filled form number 32 – if desired for Particulars of appointment of managing director, directors, manager and secretary and the changes among them or consent of candidate to act as a managing director or director or manager or secretary of a company and / or undertaking to take and pay for qualification shares
- Document evidencing payment of prescribed registration and filing fee.
- The promoters, as being the subscribers to the Memorandum and Articles should be the same person whose names are appearing in the original application for availability of name.
- If the names have changed, Registrar will not register the company until and unless, the name is got re-evaluated with the new subscribers as applicants, by paying another fee of Rs 500.
- Obtain Certificate of Incorporation from Registrar. If the registrar is satisfied that all the requirements have been complied with by the companies, it will register the company and issue a Certificate of Incorporation of the company. The date mentioned in the certificate is the date of incorporation of the company.
Contact Biz and Legis for incorporation of a company in India or getting a company law services. Call us on 0091 – 9847182002.