WHAT IS “COMMENCEMENT OF BUSINESS”?
WHAT IS “COMMENCEMENT OF BUSINESS”?
It is a Declaration to be issued by the directors within 180 days of incorporation of company stating that the subscribers to the Memorandum of the company has paid the value of shares so agreed by them, along with a verification of registered office address of the company. This declaration need to be filed along with proof of subscription money received by the company in form 20A with the Registrar of Companies.
WHO NEED TO FILE DECLARATION FOR COMMENCEMENT OF BUSINESS?
Every company having share capital incorporated after 2nd November 2018
Even the Section 8 Companies having share capital need to file form 20A
WHO ARE NOT REQUIRED TO FILE?
Companies not having share capital and
Companies incorporated before 2nd November 2018, with or without share capital.
PENALTY FOR NOT FILING
- 50,000/- for Company
- 1000/- per day for defaulting directors (maximum Rs. 1,00,000/-)
- Registrar can remove the name of the company
TIME LIMIT TO FILE
A company have to file form 20A within 180 days after its incorporation.
WILL COMPANY GET THE “CERTIFICATE OF COMMENCEMENT OF BUSINESS ?”
No, the form 20A is in STP mode i.e. The eForm will be auto approved (STP) and no certificate will be issued by the Ministry for corporate affairs.
WHAT IS THE PRESCRIBED FORM ?
Form 20A
ATTACHMENT TO FORM 20A
- Subscribers proof of payment for value of shares
- Certificate of Registration issued by the RBI (Only in case of Non-Banking Financial Companies) /from other regulators. It is mandatory to attach this document if ‘Yes’ is selected in field 3(a).
WHO WILL CERTIFY THE FORM 20A?
This e-form 20A needs to be verified by a practicing professional i,e, CS /CA/CWA. For any negligence or default in certification practicing professional shall be liable for face the consequences as per the poisons of section 448 and 449 of the companies Act, 2013.
For any query on companies Act, 2013. Please feel free to contact the author i.e. Mr. Kashif Ali. He has been into practice since 2010 and can be reached at 011-415-800-90 or 9718483209 & mail CS. kashifali@gmail.com
COMMENCEMENT OF BUSINESS
Concept of Certificate of ‘Commencement of Business’ was there in the erstwhile Companies Act, 1956 and it was also introduced by the Companies Act, 2013 under the Section 11 of the Companies Act, 2013. However, section 11 was omitted (deleted) by the companies (Amendment) Act, 2015 w.e.f. 29th May 2015.
Recently companies Act, 2013 has further amended by way of passing of ordinance by the President of India i.e. Sh. Ram Nath Kovind Ji on 2nd Day of November, 2018. Declaration for Commencement of business is re-introduced by way of inserting a new Section 10A after section 10 of the Companies Act, 2013. The text of Section 10A are as follow;
- A company incorporated after the commencement of the Companies (Amendment) Ordinance, 2018 and having a share capital shall not commence any business or exercise any borrowing powers unless—
- a declaration is filed by a director within a period of one hundred and eighty days of the date of incorporation of the company in such form and verified in such manner as may be prescribed, with the Registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and
- the company has filed with the Registrar a verification of its registered office as provided in subsection (2) of section 12.
- If any default is made in complying with the requirements of this section, the company shall be liable to a penalty of fifty thousand rupees and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues but not exceeding an amount of one lakh rupees.
- Where no declaration has been filed with the Registrar under clause (a) of sub-section (1) within a period of one hundred and eighty days of the date of incorporation of the company and the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may, without prejudice to the provisions of sub-section (2), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.
After the above amendment the Ministry of Corporate affairs has further amended the Companies (Incorporation) Rules, 2014 vides Companies (Incorporation) Fourth Amendment Rules, 2018 dated 18.12.2018.
According to Companies (Incorporation) Fourth Amendment Rules, 2018, a new Rule 23A shall be introduced by the Ministry which is also reproduced below:
“23A’ Declaration at the time of commencement of business –
The declaration under section 10A by a director shall be in Form No. lNC-20A and shall be filed as provided in the Companies [Registration Offices and Fees) Rules, 2014 and the contents of the said form shall be verified by a company Secretary or a chartered Accountant or a cost Accountant in practice:
Provided that in the case of a company pursuing objects requiring registration or approval from any sectoral regulators such as the Reserve Bank of India, Securities and Exchange Board of lndia, etc., the registration or approval, as the case may be from such regulator shall also be obtained and attached with the declaration.”.
The ordinance was came into force on 2nd Nov 2018 therefore all the provisions of this section become applicable from 2nd November 2018. Therefore every company having share capital incorporated after 2nd November 2018 has to file form 20A with 180 days i.e. before 1st May 2019. The Ministry of Corporate affairs has launched the form 20A and its available on it portal.
For any query on companies Act, 2013. Please feel free to contact the author i.e. Mr. Kashif Ali. He has been into practice since 2010 and can be reached at 011-415-800-90 or 9718483209 & mail CS. kashifali@gmail.com
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DIR 3 KYC (What is DIR-3-KYC)
What is DIR-3-KYC?
DIR-3-KYC is a new E-form to be launched shortly by the Ministry of Corporate Affairs. This form will be used to update KYC of all directors. As per rule 12A of Companies (Appointment and Qualification of Directors) Rules, 2014 applicable w.e.f. 10th July 2018 every individual who has been allotted a Director Identification Number (DIN) as on 31st March of a financial year as per these rules shall, submit e-form DIR-3-KYC to the Central Government on or before 30th April of immediate next financial year.
Therefore the form DIR-3 KYC is to be filed by every individual who has been allotted a Director Identification Number (DIN) as on 31st March of a financial year.
For example DIN was allotted to Mr. X 7th July 2018 he would need to file DIR-3 KYC before 30th April 2019
What is the last day to file DIR-3 KYC for directors
whose DIN has been allotted on or before 31st March
2018 ?
31st August 2018 is the last date to file DIR-3 KYC by every Director who has been allotted DIN on or before 31st March, 2018 and whose DIN is in ‘Approved’ status.
Is it compulsory to file DIR-3 KYC ?
Yes, its mandatory to be filed by all Director who has been allotted DIN on or before 31st March, 2018 and whose DIN is in ‘Approved’ status
EVEN DISQUALIFIED DIRECTORS NEED TO FILE FORM
DIR-3 KYC
What if someone failed to file form DIR-3 KYC on due
time?
After expiry of the due date by which the DIR-3 KYC form is to be filed, the MCA21 system will mark all approved DINs (allotted on or before 31st March 2018) against which DIR-3 KYC form has not been filed as ‘Deactivated’ with reason as ‘Non-filing of DIR-3 KYC’.
Can the DIR-3 KYC be filed after 31st August 2018?
Yes, After the due date filing of DIR-3 KYC in respect of such deactivated DINs shall be allowed upon payment of a specified fee only, without prejudice to any other action that may be taken by the MCA.
Thanking you.
For Kashif Ali & Associates
(Company Secretaries)
Kashif Ali
FCS. LL.B. M.Com.
Member ICSI (NIRC) Placement Committee
Off:C-100, Sarai Julena, New Friends Colony
New Delhi-110025
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This article is written by Kashif Ali, fellow member of ICSI and law graduate. Kashif Ali is into corporate law practice since 2010 in the name of Kashif Ali & Associates (Company Secretaries) at New Delhi. He can be reach at cs.kashifali@gmail.com.
Companies (Appointment and Qualification of
Directors) fourth Amendment Rules, 2018
Government of India
MINISTRY OF CORPORATE AFFAIRS
Notification
New Delhi, 5th July, 2018
G.S.R. (E).—In exercise of the powers conferred under second proviso to sub-section (1), sub-section (4), clause(f) of sub-section (6) of section 149, sub-section (3) and (4) of section 150, section 151, sub-section (5) of section 152, section 153, section 154, section 157, section 160, sub-section (1) of section 168 and section 170 read with section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Appointment and Qualification of Directors) Rules, 2014, namely: –
- (1) These rules may be called the Companies (Appointment and Qualification of Directors) fourth Amendment Rules, 2018.
(2) They shall come into force from 10th July, 2018.
- In the Companies (Appointment and Qualification of Directors) Rules, 2014,
(i) The rule 11 shall be renumbered as sub-rule (1) thereof and after sub-rule (1) as so renumbered, the following sub-rules shall be inserted, namely:-
“(2) The Central Government or Regional Director (Northern Region), or any officer authorised by the Central Government or Regional Director (Northern Region) shall, deactivate the Director Identification Number (DIN), of an individual who does not intimate his particulars in e-form DIR-3-KYC within stipulated time in accordance with rule 12A:
(3) The de-activated DIN shall be re-activated only after e-form DIR-3-KYC is filed along with fee as prescribed under Companies (Registration Offices and Fees) Rules, 2014.
(ii) after rule12, the following shall be inserted, namely:-
“12A Directors KYC:- Every individual who has been allotted a Director Identification Number (DIN) as on 31st March of a financial year as per these rules shall, submit e-form DIR-3-KYC to the Central Government on or before 30th April of immediate next financial year.
Provided that every individual who has already been allotted a Director Identification Number (DIN) as at 31st March, 2018, shall submit e-form DIR-3 KYC on or before 31st August, 2018.”;
http://mca.gov.in/Ministry/pdf/CompaniesAppointmentQualificationRules_06072018.pdf
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“CRC” Name Reservation under Companies Act using “RUN” problems faced by Professionals
Dear Friends,
We are filing representation before the Ministry of Corporate Affairs on behalf of professional suffering from Rejection of Name by CRC.
I am Fellow member of the Institute of Company Secretaries of India and in Practice since 2010 . I myself had loss some big assignments and lost money due to rejections by the CRC .
We believe that the officer sittings in CRC are not corrupt, but there is some corruption due to which people are earning Rs 30,000/- to 50,000/- for name approval which in normal case would have been rejected by the CRC.
We are going to file a representation to the PMO office to the Ministry of Finance and Ministry of Corporate Affairs informing them the issues we professionals and entrepreneurs are facing to “Start Business”
We are requesting you to kindly share why your Company name or Company Incorporation was rejected so that we can compile it and file it with our representation.
Sharing some of Rejection stories:
| Sr. No | Name | E Mail | Reason for Rejection | Reason for Rejection | |||
| 1 | Deepak Singhal | sdeepak.cs@gmail.com | The biggest Reason is NAME IS TOO GENERAL | And for TM atleast they should mention under which class it is registered, as earlier ROC gives clear remarks that this word is registered under this class | |||
| 2 | K. Sankara Subramanian | <shankartheacs5@gmail.com> | In our case, the promoter is holding a valid TM under class 14 and applied for incorporation with that TM Name. But the Form was marked for resubmission stating the name resembles with a TM under class 35. I think they are not even looking into the attachments or explanation letters. | ||||
| 3 | sweety kapoor | <sweetykapoor53@rediffmail.com> | so but my colleague did not get the first name approved through run and rs.1000/- gone later second name which had a simliar name got approved strange | ||||
| 4 | Sourabh Singhal | <cs.sourabh89@gmail.com> | Most common Reason
Name is Too General |
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| 5 | Durga Bansal | <bansal.durga14@gmail.com> | In my case, they rejected application 2 times for want of more documents and when third time we submitted the application with all the desired documents then they rejected saying the name is resembling with an existing company but the name given was totally different. | ||||
| 6 | Manoj Jain <jain.csmanoj@gmail.com> | my concern is why ROC cancel the SRN of INC for the change of name and ask for re-application through RUN and again rejected the application on the same grounds which was accepted earlier at the time of filing INC-1. they should migrate all the approves SRN applied through INC-1.what about the Companies who got the approval from Stock Exchanges and shareholders on the basis of earlier approval | In that case it seen name was approved through INC-1 but rejected in RUN | ||||
| 7 | Harshit Shah <cs.harshitshah@yahoo.com> | Name applied: _____ Capital Advisors Private Limited (Purely advisory activity does not need SEBI approval)
In-principle approval of concerned regulator is not provided as proposed name includes the word such as Insurance, Bank, Stock Exchange, Venture Capital, Asset Management, Nidhi, or Mutual Fund. Name is resembling /closely resembling Companies/LLP |
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| 8 | Manisha Menon <advmanisha28@gmail.com> | Dear All,
I have till now tried four times to get one simple name for our Company. Everytime I am getting complaint that the name has been trademarked or the name remotely resembles to some other Company’s name. Again we have put for name approval. We are facing more difficulty because “RUN” does not have resubmission option. It only gets rejected and our Client’s loose money just like that. Its a very bad idea that MCA has brought. Its a loss of money for the clients. We do not mind paying stamp duty but name approval form should have resubmission option. Regards, |
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| 9 | Gyaneshwar Sahai <gyaneshwar.sahai@gmail.com> | Name is resembling /closely resembling Companies/LLP | |||||
| 10 | Aarti Bhasin | <aartibhasin0203@gmail.com> | I faced the reason that the name is too generic (which was not the case as the same was available when I checked under “name availability” on MCA services). I find it totally unjustifiable. | ||||
| 11 | Taruna Kalra <taruna.cs@gmail.com> | 1. they are not checking attachments properly. in hurry, they sent form in re-submission, without checking that attachments are already there | |||||
| 12 | Mittal Shah <consultmittal@gmail.com> | We have filed name approval application under RUN on MCA portal SRN G75638643 on 3 February 2018 for “LIFESTYLE CLUB AND LESIURE PRIVATE LIMITED” which is rejected by CRC on 6 February 2018 on the basis that vide – Name is resembling /closely resembling Companies/LLP. The rejection letter stated that Proposed name is closely resemble with existing/reserved Company(s)/LLP(s) ‘LIFESTYLE CLUBOTELS PRIVATE LIMITED’ , ‘LIFESTYLE LEISURES PRIVATE LIMITED’ and many others. Hence, it is not considerable as per the provisions of Sec 4(2) of Cos Act-2013 r.w. ,Companies (INC) Rules, 2014.
Therefore, we again filed another application for name on 6 February 2018 itself as the client eagerly wants to form a company vide SRN G75901363 after checking availability of the desired name on the portal. Accordingly we applied for a modified new name “RC LIFESTYLE CLUB AND LEISURE PRIVATE LIMITED” which was also rejected again after waiting for two days on the similar grounds. Proposed name is nearly resembling with the names of the existing/reserved company/LLP ” RC LEISURE PRIVATE LIMITED”. Hence, not considerable as per the provisions of section 4(2) of the Companies Act -2013. Proposed name with “RC” is a TM under Class 36, Hence not considerable in view of provisions of rule 8(2) (a) (ii) of Companies (Inc.) Rules, 2014. hence the form is rejected. We have also raised ticket for service complaint on MCA portal asking for possible solution as the client is in urgency to form a company and start a deal, the government on the public communication as well as on MCA portal saying that now incorporation of a company is “zero fee”, and “starting a business much easier” but we did not find any solution from the compliant that we raised also, two names were rejected causing delay of almost 5 days and still we are back in the same position. Government should either provide some window to check name from all angles by the customer only else provide few name options while applying so alternative names can be approved at least and business can be started without LOSING TIME AND MONEY. MCA tickets only give caveated answers, there is no solution provided. We need alternative solution on name approval as we do not see any similarity in this class of proposed business. If both these names are not available we wish to continue with “LIFESTYLE LIVING CONCEPTS PRIVATE LIMITED” , we have LLP reserved with the same name. this is a draft email summarizing our complaints with CRC. |
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| 13 | DEEPAK SADHU <csdeepakmails@gmail.com> | Hi All
It has become a scary assignment to take up incorporation…..I will not be sure if approval of the name will be sought or not…. Please help….I am ready for volunteering to the Ministry and ICS |
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| 14 | Alpi Nehra | alpinehracs@gmail.com | Name is resembling /closely resembling Companies/LLP. | ||||
| 15 | Akshat Garg | cs.akshatgarg@gmail.com> | Name Applied : AYUSHI PROGOLD PRIVATE LIMITED Reason for Rejection Present name of the company includes/indicates “Finance/Investment/Stock Broking etc” which is allowed , subject to in principal approval from the concerned regulatory authority is furnished, for the proposed name change. | ||||
| 16 | Pratik Dhodia <cspratik.d@gmail.com> | We also filed Name Application through RUN, Got rejected twice, Reason being “approval of Regulatory Body Required” Though the Main Object of the Proposed Company was Carrying on Financial Advisory & Consultancy Business. | |||||
| 17 | Anu Pasrija <anupasrija@gmail.com> | Hi
I am not understanding the basic idea of bringing this RUN feature into picture . It is not doing any ease of business .So much exercise needs to be done while applying for the name which is actually very time consuming Over that CRC is taking almost 2-3 days for approval rather rejection I must say which is making us speechless before the Clients . We cannot quote exact fees to the client because we dont know how many attempts it would take for name approval . Incorporation has really become a tough assignment to take up |
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| 18 | CS Praveen Pandey | cspraveenpandey@gmail.com | Proposed Name – AIMS MAX GARDENIA HOMES PRIVATE LIMITEDProposed names with prefix “AIMS” is a TM under Class 36 or many more Rule 8(2) (a) (ii) of Companies (Inc.) Rules, 2014 Hence, not considerable as per the provisions of section 4(2) of the Companies Act -2013. – in Our application name is AIMS MAX GARDENIA | ||||
| 19 | FCS Mahesh Grandhi | <mahesh.gpa@gmail.com> | We filed for the proposed name with the prefix which includes capital word and like i.e., capitalman and its going to be take up only infrastructure objects and we filed three times and they are asking to submit declaration of Nbfc/Rbi /Sebi which is under rule 8 of INC rules. But Promoters are not convincing to give declaration as required by mca as their proposed company is not a capital trading company
there shall be some stringent rule for capital trading companies …. mere having prefix of the word capitalman, how can anyone give declaration . |
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| 20 | Harshit Shah <cs.harshitshah@yahoo.com> | Name applied was: BHT Commodities Private Limited.
Reason for rejection: |
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| 21 | Mayank Arora cs@mayankarora.co.in | The Biggest reason we are getting is of TRADEMARK, in case name doesnt fall in the same class than also they raise objection.
In one case MNC wanted to Form a IT Company in India with the same name but CRC did not allow and raised an Objection that Name is too general, PFA Rejection letter |
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| 22 | Sandip Jejani | Dear Concern
1. One of my client is having four Companies starting with the name “Sahyog” a. Sahyog Kuries Pvt. Ltd. These Companies are almost 20 years old (Directors and Shareholders common in all) but while applying for the name of new Company the form has got rejected on the ground that it is a trade mark of some other Companies. The name required is: a. Sahyog Finance Pvt. Ltd. 2. Second Client is having two Companies starting with the name “Anisha” (15 to 20 years old with common Directors and Shareholders) a. Anisha Interno Pvt. Ltd. The name required is: a. Anisha Industries Pvt. Ltd. Please look into the matter and suggest. |
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| 23 | More Legal Services <onuscg@gmail.com> | Name includes a registered trademark/application to trademark registration | |||||
| 24 | Sanajy Dholkia | sanjayrd65@gmail.com | The name was made available under old INC 1 and while Filing Form 24 with ROC | ||||
| they are asking for RUN SRN Applied under RUN on 6th Feb No answer and still showing | |||||||
Plz share your story
Thanking you
Kashif Ali
FCS, LL.B, M.Com
Kashif Ali & Associates
(Company Secretaries)
C-100, New Friends Colony, Sarai Juelna, Opp Escort Heart Institute, New Delhi-25
Ph: 9718483209, mail: cs.kashifali@gmail.com
ZERO Fees for Company Registration
MCA Vide its notification No. G.S.R. 48 dated 20th January 2018 issued on 25th January 2018 has amended The Companies (Registration Offices and Fees) Amendment Rules, 2018
These Rules shall come into effect from 26th January 2018
Highlights:
- Introduction of “RUN – Reserve Unique Name” Web service for name reservation, which will be launched on 26.01.2018.
- *Zero Fee* for incorporation of all companies with authorized capital upto Rs. 10 lakh.
- Re-engineering the process of allotment of DIN by allotting it through the combined SPICe form only at the time of an individual’s appointment as Director (in case he/she doesn’t have a DIN).
Thanking you
For Kashif Ali & Associates
(Company Secretaries)
Kashif Ali
FCS, LL.B, M.com
Ph: 9718483209, Mail: cs.alikashif@gmail.com
Source:http://egazette.nic.in/WriteReadData/2018/182248.pdf
*MCA UPDATES* 12th January 2018
*Automatic Reactivation of DIN*
Stakeholders of Condonation of Delay Scheme (CODS) (notified vide General Circular No.16/2017 dated 29th December 2017) may kindly note that the process for ‘reactivation’ of the DINs in respect of disqualified Directors has been completed and the status of the relevant DINs can be checked now. Stakeholders are therefore requested to file necessary ‘overdue documents’ as per the scheme.
*CODS SCHEME NOT AVAILABLE TO SOME DIRECTORS*
They may further note that the scheme is not applicable for those Directors who may have been associated with a company which was struck off under Section 248(1) of
the Companies Act-2013 and DINs for such individuals shall be
re-activated only upon receipt of orders for revival of the said company, as per due process laid down under Section 252 of the Companies Act-2013.
Please feel free to ask any query or clarification related to re-activation of your Company under CODS Scheme or through NCLT.
Thanking You
For Kashif Ali & Associates
Company Secretaries
Kashif Ali
FCS, LL.B, M.Com
Ph: 9718483209, Mail: cs.alikashif@gmail.com
