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Conversion of Private Limited Company into One Person Company

As Companies Act 2013 provides for Incorporation of One Person Company with single Shareholders, now this has enable that the existing Private Limited Companies can be converted to One Person Company (OPC).

Legal Provision relating to Conversion of Private Limited Company into OPC:-

Section 18 of Companies Act, 2013:

(1) A company of any class registered under this Act may convert itself as a company of other class under this Act by alteration of memorandum and articles of the company in accordance with the provisions of this Chapter.
(2) Where the conversion is required to be done under this section, the Registrar shall on an application made by the company, after satisfying himself that the provisions of this Chapter applicable for registration of companies have been complied with, close the former registration of the company and after registering the documents referred to in sub-section (1), issue a certificate of incorporation in the same manner as its first registration.
(3) The registration of a company under this section shall not affect any debts, liabilities, obligations or contracts incurred or entered into, by or on behalf of the company before conversion and such debts, liabilities, obligations and contracts may be enforced in the manner as if such registration had not been done.

Rule 7:

(1) A private company other than a company registered under section 8 of the Act having paid up share capital of rupees 50 lakhs or less or average annual turnover during the relevant period as defined in explanation to rule 8(4) is rupees 2 crore or less may convert itself into OPC by passing a special resolution in the general meeting.

(2) Before passing such resolution, company shall obtain No objection in writing from members and creditors.
(3) Company shall file copy of the special resolution with the Registrar of Companies within thirty days from the date of passing such resolution in Form No. MGT-14.
(4) Company shall file an application in Form No.INC-6 for its conversion into OPC along with fees as provided in in Companies (Registration offices and fees) Rules, 2014, by attaching the following documents:-
(i) Directors of the company shall give a declaration by way of affidavit duly sworn in conforming that all members and creditors of the company have given their consent for conversion, the paid up capital company is rupees 50 lakhs or less or turnover is less than rupees 2 crores as the case may be,
(ii) List of members and list of creditors,
(iii) Latest Audited Balance Sheet on the Profit and Loss Account and
(iv) Copy of No Objection letter of secured creditors.

E Form required to be Filed for Conversion of Private Limited Company into OPC:

  1. Form MGT-14 for Passing of Special Resolution
  2. Form INC-6 for Application for Conversion

Documents required to be attached with E Form INC-6 for Conversion of One Person Company into OPC:

Following Documents are mandatory for conversion of Private Limited Company into OPC:
 Affidavit
 Certified true copy of minutes, list of creditors and list of members.
 Copy of NOC of every creditors.
 Consent of the nominee in Form No. INC-3 along with all enclosures
 Copy of PAN card of the nominee and member.
 Proof of identity of the nominee and member.
 Residential proof of the nominee and member

 

Do you want to convert your Private Limited Company into OPC : connect at mail@fastlegal.in, or whatsapp at https://wa.me/919782280098 or call at 9782280098

 

Private Limited Company Registration in Jaipur
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Abridged form of Directors Report for OPC and Small Companies

In the Recent Update from MCA , MCA has issued amended rules  for Companies in respect to Preparation of Board Report for OPC and Small Companies where ministry as provided relief to Company Directors for preparation of Board Report that will not require much information and provided mandatory points that are required to be disclosed in the board report.

The Board Shall be prepared on the basis on standalone Financial Statement and shall be in abridged form and contain the following points :

  1. The Web Address, if any where annual return has been placed
  2. Number of meeting of Board of Directors of the company held During the Financial Year
  3. Directors Responsibility Statement
  4. Details in respect of frauds reported by auditors
  5. Explanation and comments by board on qualification or adverse remarks by auditors
  6. Financial Summery of Company during the financial year
  7. Statement of Company affairs
  8. Material Changes form the date of Closure of Financial Year in nature of business of the company and their impact on financial position of the company.
  9. All details of Directors who were appointed and resigned during the year.
  10. All Details of Significant material order passed by Regulators
  11. Details with contracts and arrangements with related parties in Form AOC-2

Companies (Accounts) Amendment Rules, 2018 dated 31.07.2018 :

Download here

http://www.mca.gov.in/Ministry/pdf/companisAccountsRules_31072018.pdf

 

Do you own small Private Limited Company or One Person Company and need compliance support for Annual and Event Based legal Filings – Connect at 9782280098 or email at mail@fastlegal.in

 

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How to File Form DIR-3 KYC in India – Information and Documents Required for Filing Form DIR-3 KYC

As part of updating its registry, MCA would be conducting KYC of all Directors of all companies annually through the eform DIR-3KYC. Accordingly, every Director who has been allotted DIN on or before 31st March, 2018 and whose DIN is in ‘Approved’ status, would be mandatorily required to file form DIR-3 KYC on or before 31st August,2018
Eform DIR-3KYC (Application for KYC of Directors ) is now available on MCA web-portal for necessary compliance by every Individual having obtained DIN on or before 31st March,2018.

Documents Required for Filing Form DIR-3 KYC to MCA :

  1.  Aadhar Card
  2. Passport Copy, If obatined
  3. Current Address proof – Bank Statement / Utility Bill
  4. PAN based Digital Signature 

Information  Required for Filing Form DIR-3 KYC to MCA :-

  1. DIN (Director’s Identification Number) of Director
  2. Director’s Full Name as per PAN
  3. Father’s Name as per PAN
  4. Whether Indian Citizen or Not
  5. Nationality of Director
  6. For Foreign National, Nationality will be as declared in Passport
  7. Whether Resident in India or Not
  8. In case, Non-Resident – Passport will be mandatory
  9. Date of Birth as per PAN
  10. Gender
  11. Income Tax PAN (Mandatory for Indian Citizens)
  12. Valid Passport (If having), Passport Number needs to be entered
  13. Aadhaar Number (Mandatory in case of Indian Citizen)
  14. Personal Mobile Number and E-Mail Id for the Verification of OTP
  15. Permanent Residential Address
  16. Present Residential Address

DIR-3KYC Mandatory for Foreign Directors also.

Penalty if not filed within 31st August 2018 – Rs.5000

If Not filed within due date DIN of Directors will be deactivated and Directors will be disqualified to act as Director.
KYC mandatory even for disqualified Directors.
If you are presently not a Director or Designated Partner in any company or LLP  and obtained DIN earlier than also you are required to file Form DIR3KYC
Please note this is Annual KYC compliance required to be made before 30th April every Year.
Read more at
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Condonation of Delay Scheme, 2018

Companies registered under the Companies Act, 2013 (or its predecessor Act) are inter-alia required to file their Annual Financial statements and Annual Returns with the Registrar of Companies and non-filing of such reports is an offence under the said Act. Whereas, section 164(2) of the Act read with section 167 of the Companies Act,2013 [the Act], which provisions were commenced with effect from 01.04.2014, provide for disqualification of a director on account of default by a company in filing an annual return or a financial statement for a continuous period of three years.

Whereas, Rule 14 of the Companies (Appointment and Qualification of Directors) Rules, 2014 further prescribes that every director shall inform to the company concerned about his disqualification, if any, under section 164(2), in form DIR-8.

Whereas, consequent upon notification of provisions of section 164(2), Ministry of Corporate Affairs (MCA) had launched a Company Law Settlement Scheme 2014 providing an opportunity to the defaulting companies to clear their defaults within the time period specified therein and following the due process as notified.

Whereas, MCA in September 2017, identified 3,09,614 directors associated with the companies that had failed to file financial statements or annual returns in the MCA21 online registry for a continuous period of three financial years 2013-14 to 2015-16 in terms of provisions of section 164(2) r /w 167(1)(a) of the Act and they were barred from accessing the online registry and a list of such directors was published on the website of MCA.

Whereas, as a result of above action, there have been a spate of representations from industry, defaulting companies and their directors seeking an opportunity for the defaulting companies to become compliant and normalize operations.

Whereas, certain affected persons have also filed writ petitions before various High Courts seeking relief from the disqualification. Whereas, with a view to giving an opportunity for the non-compliant, defaulting companies to rectify the default, in exercise of its powers conferred under sections 403, 459 and 460 of the Companies Act, 2013, the Central Government has decided to introduce a Scheme namely “Condonation of Delay Scheme 2018” [CODS-2018] as follows.

1. The scheme shall come into force with effect from 01.01.2018 and shall remain in force up to 31.03.2018

2. Definitions – In this scheme, unless the context otherwise requires, – means the Companies Act,2013 and Companies Act, 1956 (where ever applicable);

ii. ‘overdue documents’ means the financial statements or the annual returns or other associated documents, as applicable, in the case of a defaulting company and refer to documents mentioned in paragraph 5 of the scheme.

iii. “Company” means a company as defined in clause of 20 of section 2 of the Companies Act, 2073;

iv. “Defaulting company// means a company which has not filed its financial statements or annual returns as required under the Companies Act, 1956 or Companies Act, 201.3, as the case may be, and the Rules made there under for a continuous period of three years.

v. “Designated authority” means the Registrar of Companies having jurisdiction over the registered office of the company.

3. Applicability: – This scheme is applicable to all defaulting companies (other than the companies which have been stuck off/ whose names have been removed from the register of companies under section 248(5) of the Act). A defaulting company is permitted to file its overdue documents which were due for filing till 30.06.2017 in accordance with the provisions of this Scheme.

4. Procedure to be followed for the purposes of the scheme:-

(1) In the case of defaulting companies whose names have not been removed from register of companies,-

i) The DINs of the concerned disqualified directors de-activated at present, shall be temporarily activated during the validity of the scheme to enable them to file the overdue documents.

ii) The defaulting company shall file the overdue documents in the respective prescribed eForms paying the statutori filing fee and additional fee payable as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014 for filing these overdue documents.

iii) The defaulting company after filing documents under this scheme, shall seek condonation of delay by filing form e-CODS attached to this scheme online on the MCA21 portal.. The fee for filing application eform CODS is Rs.30,000/- (Rs. Thirty Thousand only).

(iv) The DINs of the Directors associated with the defaulting companies that have not filed their overdue documents ancl the eform CODS, and these are not taken on record in the MCA21 registry and are still found to be disqualified on the conclusion of the scheme in terms of section 164(2)/w 167(1)(a) of the Act shall be liable to be deactivated on expiry of the scheme period. In the event of defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director’s DIN shall be re-activated only NCLT order of revival subject to the company having filing of all overdue documents.

5. Scheme not to apply for certain documents – This scheme shall not apply to the filing of documents other than the following overdue documents:

i) Form Number 208/MGT-7- Form for filing company having share capital.

ii) Form 21A/MGT-7- Particulars of Annual return Annual return by a for the company not having share capital.

iii) Form 23AC, 23ACA, 23AC-XBRL, 23ACA-XBRL, AOC-4, AOC-4(CFS), AOC (XBRL) and AOC-4(non-XBRL) – Forms for filing Balance Sheet/Financial Statement and profit and loss account.

iv”) Form 66 – Form for submission of Compliance Certificate with the Ilegistrar.

v) Form 238/ADT-1- Form for intimation for Appointment of Auditors.

6. The Registrar concerned shall withdraw the prosecution(s) pending if any before the concerned Court(s) for all documents filed under the scheme. However, this scheme is without prejudice to action under section 167(2) of the Act or civil and criminal liabilities, if any, of such disqualified directors during the period they remained disqualified.

7. At the conclusion of the Scheme, the Registrar shall take all necessary actions under the Companies Act, 1956 / 2013 against the companies who have not availed themselves of this Scheme and continue to be in default in filing the overdue documents.

8. The e-Form CODS 2018 would be available from 20.02.2018 or an alternate date, which will be intimated by the ministry on www.mca.gov.in. The stakeholder should complete the necessary procedural requirements and file overdue documents without waiting for the availability of the e-CODS form.

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Appointment of Resident Director in India

Section 149 (3) of the Companies Act, 2013 has provided for residence of a director in India as a compulsory i.e. every company shall have at least one director who has stayed in India for a total period of not less than 182 days in the previous calendar year.

So if you are Incorporating a new company that has all the Director who are not Indian Resident, you need to hire one Indian Resident Director.

Duties and Responsibilities of Resident Director:

  • Resident Director will be fully responsible as Normal Director of the Company,
  • Resident Director will not be involved in operational control of the company.
  • Resident Director will be appointment to fulfill the statutory requirements .
  • Directorship will be covered under the officers and liability insurance.
  • Resident Director will participate Board Meetings of the Company, wherever required
  • Circular or other Resolutions will be approved or disapproved as par Individual Understanding.
  • Resident Director will be form our team only.

Fastlegal provides Professional Resident Director appointment services for foreign subsidiary companies setting  up Business in India to fulfil the requirements of provisions of Companies Act, 2013

 

Pricing for Resident Director Services : Provided on request.

Email us at-: mail@fastlegal.in

 

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Disqualification for Appointment of Director under Companies Act, 2013

The Company being a separate legal entity acts through its Directors and for the purpose of appointment of Director Indian Companies Act, 2013 provides that any Individual can be appointed as Director of the Company if he does not possess the disqualification mentioned under the provisions of Companies Act, 2013


Disqualifications for the appointment of Director:

(1) A person shall not be eligible for appointment as a director of a company, if–

(a) he is of unsound mind and stands so declared by a competent court;

(b) he is an undischarged insolvent;

(c) he has applied to be adjudicated as an insolvent and his application is pending;

(d) he has been convicted by a court of any offence, whether involving moral turpitude or otherwise, and sentenced in respect thereof to imprisonment for not less than six months and a period of five years has not elapsed from the date of expiry of the sentence:

Provided that if a person has been convicted of any offence and sentenced in respect thereof to imprisonment for a period of seven years or more, he shall not be eligible to be appointed as a director in any company;

(e) an order disqualifying him for appointment as a director has been passed by a court or Tribunal and the order is in force;

(f) he has not paid any calls in respect of any shares of the company held by him, whether alone or jointly with others, and six months have elapsed from the last day fixed for the payment of the call;

(g) he has been convicted of the offence dealing with related party transactions under section 188 at any time during the last preceding five years; or

(h) he has not complied with sub-section (3) of section 152.

(2) No person who is or has been a director of a company which–

(a) has not filed financial statements or annual returns for any continuous period of three financial years; or

(b) has failed to repay the deposits accepted by it or pay interest thereon or to redeem any debentures on the due date or pay interest due thereon or pay any dividend declared and such failure to pay or redeem continues for one year or more,

shall be eligible to be re-appointed as a director of that company or appointed in other company for a period of five years from the date on which the said company fails to do so.

(3) A private company may by its articles provide for any disqualifications for appointment as a director in addition to those specified in sub-sections (1) and (2):

Provided that the disqualifications referred to in clauses (d), (e) and (g) of sub-section (1) shall not take effect–

(i) for thirty days from the date of conviction or order of disqualification;

(ii) where an appeal or petition is preferred within thirty days as aforesaid against the conviction resulting in sentence or order, until expiry of seven days from the date on which such appeal or petition is disposed off; or

(iii) where any further appeal or petition is preferred against order or sentence within seven days, until such further appeal or petition is disposed off.

Further Rule 14(1) of Companies ( Appointment & Qualification of Directors ) Rules 2014 says that every Director of the Company Shall inform to the Company concerned about his disqualification under Sub section 2 of section 164, in form DIR 8.

Further Sub Rule 2 provides that where company fails to file the financial statements or annual returns, or fails to repay any deposit, interest, dividend, or fails to redeem its debentures, the company shall immediately file form DIR 9 to ROC furnishing the names and addresses of all the directors of the company during the financial year.

Further where company fails to file the form DIR 9 within 30 days of the failure that would attract disqualification under sub section 2 of section 164, officers of the company specified in clause (60) of Section 2 of the Act shall be the officers in default.

Application of Removal of Disqualification of Directors shall be made in DIR 10.

 

 

FORM ‘DIR-10’

FORM OF APPLICATION FOR REMOVAL OF DISQUALIFICATION OF DIRECTORS

[Pursuant to Section 164(2) read with rule 14(5) of Companies (Appointment and Qualification of Directors) Rules, 2014]

Registration No. of Company ______________

Nominal Capital Rs._____________

Paid-up Capital Rs. _____________

Name of Company__________________________

Address of its Registered Office____________________

 

Grounds under which director(s) are disqualified ____________________

 

Date of disqualification ________________

 

Details of the application _______________________________

Signature

Designation*

Dated this _________ day of _________

 

*State whether Director, Managing Director, Manager or Secretary