MCA Amends Incorporation Rules for Shifting its Registered Office

The Companies (Incorporation) Rules, 2014 have been amended by the Ministry of Corporate Affairs. They term this the Companies (Incorporation) Second Amendment Rules, 2017. The Amendment Rules shall come into force from the date of publication in the Official Gazette.

The Ministry has amended the provisions of the Companies (Incorporation) Rules, 2014 (referred to as the “Principal Rules”) for Rule 28 which is for shifting the registered office within the same state, and Rule 30, which is for shifting the registered office from one state or Union Territory to another.

Shifting of Registered office within the same state

Provision as per Amended Rules – The Amended rules for Rule 28 are as follows: The registered company office that is to be shifted in the same state from the jurisdiction of one Registrar of Companies to the jurisdiction of another, the company will have to submit an application. This is to be filed with the Regional Director in Form INC 23. There is also a requisite fee involved, along with the following documents that have to be submitted along with the application. 

• The Board Resolution for shifting the registered office
• A Special Resolution of the company members approving the shift of registered office
• A declaration by the Key Managerial Personnel or any two directors authorized by the Board that the company has no default payment overdue to its employees and has the consent of either its creditors or has made necessary provision for the payment thereof

A declaration to not seek the change in the jurisdiction of the Court where cases for prosecution are pending
An Acknowledged copy of intimation to the Chief Secretary of the State as to the proposed shifting, keeping in mind that the employee’s interest is not adversely affected as a consequence of the proposed shifting. 

How Rule 28 of the Amendment is different from the Principal Rules

According to Rule 28 of the Principal Rules, the company that wants to change the address of the registered office within the state had to publish a notice in the daily newspaper in the local language of the district and English; in addition to submitting Form INC 23 to the Regional Director. 
Those companies will also serve a notice on each debenture holder, depositor, and creditor of the company indicating the matter of application. But the requirements will have to be fulfilled within the Amendment Rules.

Apart from that, Rule 28 in the Principal Rules also includes the proviso that a company will not be allowed to shift the registered address if any inquiry, inspection, or investigation is made against the company or if any prosecution is pending against the company under the Companies Act, 2013. 
The Amendment Rules will not include any such provision, thus allowing the companies to apply for the shift of the registered office.

Shifting of Registered Office from one state or Union Territory to another state

According to the Rule 30 Amendment Rules, the shifting of a registered office of a company from one state or Union Territory to another will be undertaken by applying to seek approval for the alteration of a memorandum concerning the change to the Central Government. The application will have to be filed in Form INC 23 along with a required fee and the documents given below:

• A copy of the Memorandum of Association along with proposed alterations
• A copy of the minutes of the General Meeting at which the resolution authorizing such an alteration was passed, providing details of the number of votes cast in favor or against the resolution
• A copy of the Board Resolution or Power of Attorney or the executed vakalatnama.

The company is also required to advertise Form INC-26 in a local newspaper in the vernacular language and an English newspaper that has the widest circulation in the state where the Registered Office is currently situated. It has to be done within 30 days of filing Form INC 23. According to the principal Rules, the advertisement will have to be out within 14 days of the filing of the application.