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Update on Section 8 Company Incorporation: What You Need To Know

If any individual is thinking to start or run and establish an NGO (Non Governmental Organisation/ Non Profit Organisation) than the same can be established through acquiring a License under Section 8 companies. To promote the idea of Incorporation of section 8 companies, Government has made the process easier by dispensing the requirement of obtaining license by filling form INC-12. For Section 8 Company incorporation in India you need to file SPICe form INC-32 which is a Simplified Performa for Incorporating Section 8 Company electronically. This is a single point application for reservation of company name, allotment of DIN for Director and Incorporation of new company along with allotment of PAN & TAN. In this article we will discuss the Section 8 Company Incorporation Update in detail;

Introduction: Section 8 Company

Section 7 of companies act, 2013 provides the procedure for incorporation of the company. NGO and Non – Profit organizations in India exits in three different legal forms which are;

1. Trusts
2. Societies
3. Section 8 Companies

The objective of section 8 companies is to promote art, commerce, charity, education and social welfare religion, protection of the environment, or any such other objects. The total income incurred from such companies shall be utilized only for the charitable work, and no dividend shall be paid to any of the company members. After completing all kind of documentations an incorporation certificate will be provided by the central govt. 

Section 8 Companies Incorporation rules according to companies (Incorporation) Rules, 2014,

• Rule 9 to 11 – Reservation of Name;
• Rule 12– Application for Incorporation of company
• Rule 13– Signing of Memorandum of Articles
• Rule 14– Declaration by professionals
•  Rule 15– Affidavit for subscribers and first directors 
•   Rule 17 – Particulars of first Director of the company and their consent to act as such
• Rule 18– Certificate of Incorporation
•  Rule 38- Inserted through companies (Incorporation) Fifth Amendment Rule, 2016, Provides simplified Performa for the incorporation of companies electronically (SPICe). The said rule prescribes Form No. INC- 32 along with the e- memorandum of association in Form INC- 33 and e-Article of Association in Form INC- 33 and e- Memorandum of Association IN Form No. INC-34. Henceforth, the aforesaid amendments make the process of Incorporation of Section 8 companies more abrupt and facile.

What is the Recent Section 8 Company Incorporation Update?

Ministry of companies (Incorporation) by 6^th amendment rules, dated 7^th June 2019 which prescribe that application for the incorporation of section 8 company along with the application of license will be submitted through Form- 32 (SPICe). However, the licensing procedure for the existing Section 8 Company will be continued the same through Form INC-12.

Another change which will take place post this new amendment is that earlier Registrar of Companies (RoC) was holding the power to grant the license for the section 8 and now post this amendment, the power to grant of License will be now with the Central Registration Center (CRC).

Procedure for Incorporation

1. Reservation for Name

Rule 9 provides that an application for reservation of a name shall be made through RUN facility available at website^[1]. The criteria for reserving the name is that section 8 company shall include the words Foundation, Forum, Association, Federation, Chamber, Confederation, Council, Electoral Trust, etc…

Maximum 2 names can be purposed at a time and 1 resubmission is allowed in the RUN facility.

2. Apply for SPICe

• In respect to simplifying the process of incorporating Section 8 section companies on 7^th June 2019 requirement of prior filling of INC-12 has been dispensed vide the Companies (Incorporation) Sixth Amendment Rules,2019.
• Henceforth, Section 8 can be incorporate by either reserving its name through Run or then filling SPICe or by directly filling SPICe and license no. shall be allotted at the time of incorporation.
• In view of the above, all pending INC-12 for new companies pending in respect of RoCs would be rejected on 15^th August 2019. Such applicant may thereafter directly file SPICe for obtaining License number for the incorporation of Section 8 Companies.

3. e- MOA and e- AOA

Memorandum of Association and Article of Association both are the two important charter documents, which are important as to regulate business’s dealings with the outsider and control internal functioning, respectively.

The ministry has introduced an online variant of it, now users can obtain approved e-MOA (INC-33) and e-AOA (INC-34) through certified copies facility available on the website of MCA^[2].

4. E- form AGILE for GSTIN, EPFO, and ESIC

Ministry of corporate has notified a new E- Form AGILE- Application for Registration of the Goods and Service Tax Identification Number (GSTIN), Employee State Insurance Corporation (ESIC) registration and Employee Provident Fund Organization (EPFO)

With effect from 31st March 2019, it is mandatory to file the application (SPICe) for the incorporation of a company which shall be accompanied by a linked e-form INC-35 (AGILE).  This AGILE form is a part of SPICe Incorporation e-form and covers three important registrations for businesses namely:

• GSTIN (Goods and Services Tax Identification Number),
• EPFO (Employees Provident Fund Organization), and
• ESIC (Employee State Insurance Corporation).

By filing the e- form AGILE along with the SPICe form at the time of registration; the company automatically would be enrolled for GST, Employee State Insurance Corporation (ESIC) and Employees Provident Fund Organization (EPFO).

The new e- form AGILE is also known as INC-35, in which any company can apply for GST Registration, ESIC Registration, and EPFO Registration along with company registration in SPICe Form.

Also, Read: Rules and Regulations Under Section 8 Company Registration.

5. Application for GSTIN through e-form AGILE

This process will be applicable only for Companies incorporated by MCA through SPICe application. The others shall follow the existing process of registration through Common portal for GST Registration.

The address of the registered office of the company, as provided in SPICe application, shall be the principal place of business for GST application as well.

Once the company is incorporated at MCA portal and COI and PAN has been successfully generated, required information will be forwarded to ESIC for processing of the form. Once the data is successfully validated by ESIC, employer code will be generated and will be displayed on the MCA portal.   

What are the Documents Required for Section 8 Companies Registration?

Documents required for Director

• PAN Card – During the process of company incorporations director form Indian Nationality are required to submit their PAN card, a unique identification number issued by Income Tax Department.
• Proof of Address – For the purpose of providing residential proof, the director is required to submit the document which could be in the form of Passport, Voter ID, Driving License, or Adhaar Card. However, the provided proof of address must include the same Director name as mentioned in the PAN card.
• Residential Proof – However, the proof of address form a part of most of the documentary essentials, but the resident proof is required to validate the address of Director. The document can be a Bank Statement, Electricity Bill, and Mobile bill. As like proof of Address residential proof must include the Director name as mentioned in PAN card.
• Registered Office Proof- During the course of registration or within 30 days of company incorporation, the documents required are-
• Registered document of the title of the premises of registered office in the name of the company.
• The notarized copy of the lease/rental agreement in the name of the company, in support with the copy of one month, paid rent receipt.
• Other documents required are authorization for owner and proof of evidence of any utility service.

Documents for Shareholder

The identity and address proof of all the company shareholder must be furnished on behalf of all the shareholder of the company. If such a shareholder is a corporate entity or Association of the person (AoP), a certificate of Incorporation of the Body corporate must be attached along with the resolution passed by the body corporate to subscribe to share of the company under Incorporation.

What are the Benefits of Section 8 Company Registration?

• Exemption from Stamp Duty
• Tax deduction to the donor of the company under section 80G of the Income Tax Act.
• Section 8 companies can be established without share capital, in such cases, necessary funds for carrying the business are brought in the form of donations, subscriptions from members and the general public.
• No suffix like limited or Pvt. Limited is required to be added in section 8 companies.
• A section 8 company is more credible than any other Non-Profit Organization like Trust or Society.

Conclusion

Govt. with such reforms on various old models or on old rules, try to ease the business process in India. The new Update will make the Section 8 Company Incorporation process more easy and quick, which will benefit the company as well as the Startup India Scheme.

Our recommendation: NGO & Section 8 Registration in Delhi.