I. INTRODUCTION: Section 12 and 13 of the Companies Act, 2013 and Companies (Incorporation) Rules, 2014 states the law and procedure regarding having a registered office of the Company and shifting of registered office of the Company. Provisions and procedures relating to shifting of Registered Office (RO) from one state to another state are as follows: II. SECTION 13 – ALTERATION OF MEMORANDUM OF ASSOCIATION: A Company is required to obtain members approval by way of passing a special resolution for alteration of its Memorandum of Association (MoA) to shift its RO from one state to another by following the steps as prescribed in the section.
NOTE: Shifting of RO shall not be allowed if any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the Company under the Act.
- SECTION 13(4) –
- The alteration of MOA with respect to change of state from one to another shall be approved by Central Government (CG) on an application made.
- CG shall dispose of the application within 60 days but before passing such an order it may satisfy itself that the alteration has-
- Consent of creditors/ debenture holders, if any/ other persons concerned with the company whose interest is likely to get affected; or
- Or that the sufficient provision has been made by the company either for due discharge of all its debts and obligations or that adequate security has been provided for such discharge of debts.
- A certified copy of the order passed by CG, approving the alteration, shall be filed with Registrar of each state, who shall register the same and the Registrar of the state where the office is being shifted shall issue a fresh certificate of Incorporation stating the alteration.
- RULE 30:Following are the points to be addressed for shifting of RO-
- An application shall be accompanied by following documents:
- a copy of MOA & AOA;
- copy of notice convening General Meeting (GM) along with explanatory statement;
- copy of Special Resolution sanctioning the alteration by members;
- copy of Minutes of GM at which the resolution authorizing such alteration was passed, giving details of number of votes cast in favour and number of votes against;
- affidavit verifying the application;
- list of creditors & debenture holders entitled to object to the application;
- affidavit verifying list of creditors - (to be signed by company secretary, if any, and not less than two directors of the company one of whom shall be managing director, if any, stating that they have done full enquiry into the affairs of the company and, having done so, have formed a opinion that the list of creditors and value for them is correct to their knowledge);
- document relating to payment of application fee;
- copy of board resolution or power of attorney or executed vakalatnama as case may be
- an affidavit from the directors that no employee shall be retrenched as a consequence of shifting of RO
- names and address of every creditor and debenture holder of the company;
- nature and respective amounts due to them in respect of debts, claims or liabilities.
- There shall also be an application filed by the company to the Chief Commissioner of Income Tax Department & Chief Secretary of the concerned State Government or Union territory for giving notice of the proposed shifting of registered office.
- A duly authenticated copy of list of creditors shall be kept at registered office for inspection during the business hours.
- There shall also be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.
- File a copy of the application along with all annexures to Registrar of Companies (ROC) in form GNL 1.
- File form INC 23 with the Regional Director (RD) supported by the application and all annexures as stated above and a copy of the acknowledgment of service of a copy of the application with complete annexures to the Registrar (challan of form GNL 1), Chief Commissioner of Income Tax Department and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.
- The company shall at least fourteen days before the date of hearing-
- advertise the application in form INC 26 in a vernacular newspaper in the principal vernacular language in the district in which the registered office of the company is situated, and at least once in English language in an English newspaper circulating in that district;
- serve, by registered post with acknowledgement due, individual notice(s), on each debenture holder and creditor; and
- serve, by registered post with acknowledgement due, a notice together with the copy of application to the Registrar & SEBI.
- Where any objection of any person whose interest is likely to be affected by the proposed application has been received by the applicant, it shall serve a copy thereof to CG on or before date of hearing.
- Where no objection has been received from any of the parties, the application may be put on orders without hearing. CG shall ensure that consent has been obtained from the creditors & debenture holders for the alteration or claim has been discharged or has determined or has been secured.
- Once the order is passed by the RD, approving shifting of the registered office, file form INC 22 with both the ROCs along with supportive documents.
- File copy of RD order with ROC in form INC 28.
- An application shall be accompanied by following documents:
|S. No||Form & its particulars||Due date|
|1||Form MGT 14 – for filing of special resolution||Within 30 days of passing resolution|
|2||Form GNL 1||To be filed simultaneously with filing of form INC 23|
|3||INC 23 – Application to RD for seeking approval to shift the RO from one state to another||At least 1 month after serving notice to creditors and publication of newspaper advertisement|
|4||INC 26 – Advertisement to be published in news paper for change of RO from one state to another||At least 14 days before the date of hearing given by Regional Director|
|5||INC 28 – Certified copy of Central Government order(RD) to be filed with ROC||Within 30 days of passing of order|
|6||INC 22 - For shifting of RO||Within 15 days of order passed by RD|