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[2017] 84 taxmann.com 137 (Article)

[2017] 84 taxmann.com 137 (Article)

Date of Publishing: August 17, 2017

MCA Amends Norm for Shifting of Registered Office Under Companies Act, 2013

KANIKA KUMAR
CS

MCA through its Notification dated 27th, July, 2017 amended Companies (Incorporation) Rules, 2014
which will now be called as Companies (Incorporation) Rules, 2017.

The above dated Notification is with regard to amendments in Rule 28 and Rule 30 related to
Shifting of Registered Office. The purpose behind the amendment is to consider the interest
of both Workers, Creditors and debenture- holders.

Following below mentioned are the Provisions both earlier as well as amended along with the impact of
amended provisions:

In Rule 28 - Shifting of registered office within the same state

Earlier Provision

For shifting the registered office within the same State from the jurisdiction of one Registrar of Companies
to the jurisdiction of another Registrar of Companies shall be filed by the company with the Regional
Director in Form no. INC-23.

1. For change of Registered office, before filing an application with Regional Director and within a
period of one (1) Month following is to be done:
♦ A notice is to be published at least once in a daily newspaper in English and in the
principal language of that district in which the registered office of the company is
situated.
♦ To serve a notice on each of the following of the company on individual basis :
• Debenture holder
• Depositor
• Creditor

Mentioning about the matter involved and any person whose interest is further to be affected due to
alteration in Memorandum of Association may inform the Regional Director both the nature and grounds

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that why they are opposing within 21 days of the publication of the above said notice.

Provided that, if no objection is received by the Regional Director within the said 21 days
then it shall be deemed that the concerned person has given his consent regarding the change
of the registered office. Provided further that shifting of the Registered office is not allowed if
any inquiry or any proceedings are pending against the company in any court.

Amended Provision

For shifting the registered office within the same State from the jurisdiction of one Registrar of Companies
to the jurisdiction of another Registrar of Companies shall be filed by the company with the Regional
Director in Form no. INC.23 along with the following documents:

♦ Board Resolution for shifting of registered office;

♦ Special Resolution of the members of the company
♦ A declaration by the KMP or any 2 directors with regard to that the company has not made any
default in payment of the dues to their workmen.
♦ A declaration by the KMP (Key Managerial Person) or any 2 directors stating that consent of the
creditors has been taken and they have no issue for shifting of the registered office or any
provision has been made for making payment to the concerned creditors.

A copy of intimation which has been made to the chief Secretary of the state regarding the proposed shifting
of registered office and stating that employee's interest is not adversely affected as a result of proposed
shifting.

Impact

Interest of Workmen, Creditors is now to be considered while shifting of registered office within
the same State from the jurisdiction of one Registrar of Companies to the jurisdiction of another Registrar of
Companies.

In Rule 30 - Shifting of registered office from one state to another

Earlier Provision

1. For shifting the registered office within the same State from one State Government or Union
territory to another shall be filed by the company with the Central Government in Form no.
INC.23 along with the following documents:
■ a copy of the memorandum and articles of association;
■ a copy of the notice of general meeting along with Explanatory Statement;
■ a copy of the special resolution passed by the members.
■ a copy of the minutes of the general meeting at which the resolution for alteration was
passed including the details of the number of votes cast in favour or against the
resolution;
■ an affidavit verifying the application that all the facts stated are true.
■ the list of creditors and debenture holders objecting over the issue of shifting
■ an affidavit to verify the list of creditors;
■ the document relating to payment of application fee;

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■ a copy of board resolution or Power of Attorney or the executed Vakalatnama as per the
case stating the person authorized to continue the further proceedings involved in
shifting.
■ A copy of the No Objection Certificate from the Reserve Bank of India where the applicant
is a registered Non-Banking Financial Company.
2. A latest list of creditors and debenture holders is to be attached preceding the date of filing of
application within its one month and stating the following
○ The names and address of every creditor and debenture holder of the company;
○ The nature and the amounts due to them.
Provided that Applicant Company has to file an affidavit signed by:
○ Company Secretary, if any AND
○ By 2 Directors, 1 of them shall be a Managing Director ( if there is 1 director)
Stating that they all have made full enquiry into the operations cum affairs of the
company and the list of creditors and the debt due to them is correct and no other
liability is due against the company.
3. An application to be attached as a part of an affidavit from the directors of the company
mentioning that no employee shall be retrenched as a result of shifting of the registered office and
an application is to be filed by the company to the Chief Secretary of the concerned State
Government or the Union territory
4. A copy of the list of creditors shall be kept at the registered office of the company and any person
desirous of inspecting the same may, at any time during the ordinary hours of business, inspect
and take extracts from the same on payment of a sum not exceeding ten rupees per page to the
company.
5. Attach a copy of the application along with complete attachments 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.
6. The company shall do the following at least fourteen days before its hearing before Central
Government :
■ Advertise the application related to shifting of the Registered office in the Form No.
INC- 26 in a vernacular newspaper in a vernacular language of the district in which the
registered office of the company is situated, and at least once in English language in an
English newspaper of that particular district.
■ A notice through registered posts individually each on creditors and debenture holders of
the company.
■ A notice through registered post to the Registrar and if the company is regulated by
special body then to its Regulatory body.
7. If the applicant company received any objection with regard to that the interest of the person is
likely to be affected, then a copy of the same to be circulated to the Central Government on or
before date of hearing.
8. If the applicant company receives no objections, then further orders may be put up without
hearing.
9. Before allowing the alteration in MOA with regard to the Registered office, Central Government
ensure that consent of all creditors and debenture holders has been received and their debt has
been satisfied full or has been discharged.

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10. Central Government may make an order after all the conditions are satisfied fully.

Provided that the shifting will take place only the inquiry or any proceedings against the
company has been completed.

Amended Provision:

1. For shifting the registered office within the same State from one State Government or Union
territory to another shall be filed by the company with the Regional Director in Form no. INC.23
along with the following documents:
a. a copy of the memorandum and articles of association;
b. a copy of the minutes of the general meeting at which the resolution was passed and
details with regard to the votes in favour and in against of the resolution to be mentioned.
c. a copy of board resolution or Power of Attorney or the executed Vakalatnama as per the
case stating the person authorized to continue the further proceedings involved in
shifting.
2. A latest list of creditors and debenture holders is to be attached preceding the date of filing of
application within its one month and stating the following
■ The names and address of every creditor and debenture holder of the company;
■ The nature and the amounts due to them.
Provided that Applicant Company has to file an affidavit signed by:
■ Company Secretary, if any AND
■ By 2 Directors, 1 of them shall be a Managing Director ( if there is 1 director)
Stating that:
• They all have made full enquiry into the operations cum affairs of the company and the
list of creditors and the debt due to them is correct and no other liability is due against the
company and
• No Employee shall be retrenched as a result of Shifting of the Registered office from one
state to another state and an application to be filed by the company to the Chief Secretary
of the concerned State Government or the Union territory.
3. A copy of the list of creditors shall be kept at the registered office of the company and any person
desirous of inspecting the same may, at any time during the ordinary hours of business, inspect
and take extracts from the same on payment of a sum not exceeding ten rupees per page to the
company.
4. 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.
5. The company shall within 30 days of filing the application in Form No. INC.23 –
a. Advertise the application related to shifting of the Registered office in the Form No.
INC- 26 in a vernacular newspaper in a vernacular language of the district in which the
registered office of the company is situated, and at least once in English language in an
English newspaper of that particular district.
b. A notice through registered posts individually each on creditors and debenture holders of
the company.
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c. A notice through registered post to the Registrar and if the company is regulated by
special body then to its Regulatory body.
6. Following is to be attached to the application made:
○ A copy of the advertisement/ notices issued
○ A copy of the objections received
○ Details of responses and counter responses given by the company in tabular format either
in physical mode or electronic mode.
7. Where no objection has been received from any person with regard to the advertisement or notice
issued, the application may be put up for orders without hearing and the order either related to
approval or rejection, as decided, shall be passed within fifteen days of the receipt of the
application.
8. Where an objection has been received the Central Government shall:
(a) Hold a hearing or hearings, as per the requirement and ask the company to file an
affidavit and stating the consensus (consent obtained) concluded at the hearing as per
which the Central Government shall pass an order within 60 days of filing an application.
(b) If no conclusion has been reached at the hearings held, then company is required to file
an affidavit stating the manner as to how the objection raised, can be resolved within a
definite time period and the jurisdiction of all the legal formalities to be raised further
shall be executed at its original jurisdiction although the registered office has already been
shifted and an order shall be passed within sixty days of the filing of application.
9. Central Government may make an order after all the conditions are satisfied fully.

Provided that the shifting will take place only the inquiry or any proceedings against the
company has been completed.

Impact

Interest of Workmen, Creditors is now to be considered while shifting of registered office from
one state to another and list of attachments have been reduced while filing of registered office application.

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