Practical Difficulties in Form INC-1 filings, Applicable Provisions, Resubmissions, Reasons for Rejection of Names, Major Changes via Amendment Rules by MCA By CS Shiriti Kumari


Dear Professional Colleagues,

Now-a-days many persons either Professionals/Stakeholders/or any other person who are filing an application to CRC in Form INC-1 are facing rejections issues and troubles in name approvals. In this Article, I have tried to sum up clarification with the rules and provisions of Name guidelines. 
The guiding instructions for deciding cases of making a name available for registration are compiled here in this article. In addition to these, all the applicants are requested to note the following general instructions as per Section 4(4) of the Companies Act, 2013 and Rule 8 & 9 of Companies (Incorporation) Rules, 2014 .

Applicable provision : Pursuant to Section 4(4) of the Companies Act, 2013 and Rule 8 & 9 of Companies (Incorporation) Rules, 2014]

Form:  INC-1 (Reservation of name)

Department: The e-Form INC-1 will be sent to Central Registration Centre (CRC) for approval. Central Government establishes “Central Registration Centre” under the administrative control of Registrar of Companies, Delhi for processing name reservation applications in Form No. INC-1.

When a promoter/Start-up decides to form a Company; first legal step is Reservation of a Name for the Company.

Major Changes via Amendment Rules by Ministry of Corporate Affairs (“MCA”)

The Ministry of Corporate Affairs (“MCA”) has, vide its notification dated January 22, 2016, issued the Companies (Incorporation) Amendment Rules, 2016 (“Amendment Rules”) amending the existing Companies (Incorporation) Rules, 2014 (“Principal Rules”) wherein rule 8, rule 9 and rule 36 of Companies (Incorporation) Rules, 2014 (hereinafter referred to as the principal rules), have been amended.

  • The Amendment Rules have brought about significant changes to Principal Rules and these rules came into force on January 26, 2016.
  • MCA had earlier amended the Principal Rules by issuing the Companies (Incorporation) Amendment Rules, 2015 dated May 1, 2015.
  • The Amendment Rules constitute the second amendment to the Principal Rules in furtherance to its objectives of ease of doing business in India.

Two Basics reasons for seeking Reservation of Name for:

  • A Proposed New Company or
  • An Existing Company Seeking to Change its Name

Shall make an application to Registrar in which the registered office of the company is situated or to be situated. Applicant/Users may apply for reservation of name by filing proposing six names for the company. 

An existing company can also propose six names and change its name subject to special resolution (MGT-14) and approval of Central Government(INC-24 ). The proposed name applied should not be undesirable as per the relevant provisions of the Act and rules dealt with in this matter.

The Registrar may on the basis of information and documents file as an application in this eForm, reserve the name for a period of sixty days from the date of the application.

Stakeholders are requested to ensure that the proposed name selected does not contain any word as prohibited in Section 4(2) & (3) of the Companies Act, 2013 read with Rule 8 of the Companies (Incorporation) Rules, 2014.

Stakeholders are also requested to read and understand Rule 8 of the Companies (Incorporation) Rules, 2014 in respect of any proposed name before applying for the same.

Particulars’ of Section Applicable

“Companies Act, 2013”

Sub section Contains

Sub section Clause Contains

 

 

 

Section 4(2)

(2) The name stated in the memorandum shall not:

 

(a) be identical with or resemble too nearly to the name of an existing company  registered under this Act or any previous company law; or

 

(b) be such that its use by the company—

 

(i) will constitute an offence under any law for the time being in force; or

(ii) is undesirable in the opinion of the Central Government

 

Section 4 (3)

(3) Without prejudice to the provisions of sub-section (2), a company shall not be registered with  a name which contains—

 

(a)    any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Central Government, any State Government, or any local authority, corporation or body constituted by the Central Government or any State Government under any law for the time being in force; or

 

(b)    such word or expression, as may be prescribed, unless the previous approval of the Central Government has been obtained for the use of any such word or expression.

 

Section 4 (4)

(4) A person may make an application, in such form and manner and accompanied by such fee, as may be prescribed, to the Registrar for the reservation of a name set out in the application as:

 

(a) The name of the proposed company; or

(b)    The name to which the company proposes to change its name.

 

 

Section 4 (5)

(5) (i) Upon receipt of an application under sub-section (4), the Registrar may, on the basis of information and documents furnished along with the application, reserve the name for a period of sixty days from the date of the application.

(ii) Where after reservation of name under clause (i), it is found that name was applied by furnishing wrong or incorrect information, then,—

 

(a) if the company has not been incorporated, the reserved name shall be cancelled and the person making application under sub-section (4) shall be liable to a penalty which may extend to one lakh rupees;

(b) if the company has been incorporated, the Registrar may, after giving the company an opportunity of being heard:

 

(i) either direct the company to change its name within a period of three months, after passing an ordinary resolution;

 

(ii) take action for striking off the name of the company from the register of companies; or

 

(iii) make a petition for winding up of the company.

Undesirable Names

  • The proposed name should not violate the name of a Registered Trade Mark or a trade mark which is subject of an 8 application for registration, unless the consent of the owner or applicant for registration is obtained.
  • The proposed name should not violate section 3 of the Emblems Act 1950.

A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.

  • The proposed name should not contain any word or words which are offensive to any section of the people.
  • The name of the company should not constitute an offence under any law for the time being in force or is undesirable in the opinion of the Central Government.

(1) In determining whether a proposed name is identical with another, the differences on account of the following shall be disregarded-

  • the words like Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP, Limited Liability Partnership;

  • words appearing at the end of the names – company, and company, co., co, corporation, corp, corpn, corp.;

  • plural version of any of the words appearing in the name;

  • type and case of letters, spacing between letters and punctuation marks;

  • joining words together or separating the words does not make a name distinguishable from a name that uses the similar, separated or joined words;

  • use of a different tense or number of the same word does not distinguish one name from another;

  • using different phonetic spellings or spelling variations shall not be considered as distinguishing one name from another. Illustration (For example, P.Q. Industries limited is existing then P and Q Industries or Pee Que Industries or P n Q Industries or P & Q Industries shall not be allowed and similarly if a name contains numeric character like 3, resemblance shall be checked with ‘Three’ also;)

  • misspelled words, whether intentionally misspelled or not, do not conflict with the similar, properly spelled words;

  • the addition of an internet related designation, such as .com, .net, .edu, .gov, .org, .in does not make a name distinguishable from another, even where (.) is written as ‘dot’;

  • the addition of words like New, Modern, Nav, Shri, Sri, Shree, Sree, Om, Jai, Sai, The, etc. does not make a name distinguishable from an existing name and similarly, if it is different from the name of the existing company only to the extent of adding the name of the place, the same shall not be allowed; such names may be allowed only if no objection from the existing company by way of Board resolution is submitted;

  • different combination of the same words does not make a name distinguishable from an existing name, e.g., if there is a company in existence by the name of “Builders and Contractors Limited”, the name “Contractors and Builders Limited” shall not be allowed unless it is change of name of existing company;

  • if the proposed name is the Hindi or English translation or transliteration of the name of an existing company or limited liability partnership in English or Hindi, as the case may be.


(2) (a) The name shall be considered undesirable, if-

  • it attracts the provisions of section 3 of the Emblems and Names (Prevention and Improper Use) Act, 1950 (12 of 1950);

  • it includes the name of a registered trade mark or a trade mark which is subject of an application for registration, unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters;

  • it includes any word or words which are offensive to any section of the people;

(2) (b) The name shall also be considered undesirable, if-


(i) The proposed name is identical with or too nearly resembles the name of a limited liability partnership;

(ii)

[Omitted]

(iii) the company’s main business is financing, leasing, chit fund, investments, securities or combination thereof, such name shall not be allowed unless the name is indicative of such related financial activities, viz., Chit Fund or Investment or Loan, etc.;

(iv)  It resembles closely the popular or abbreviated description of an existing company or limited liability partnership;

(v) The proposed name is identical with or too nearly resembles the name of a company or limited liability partnership incorporated outside India and reserved by such company or limited liability partnership with the Registrar:

Provided that if a foreign Company is Incorporating its Subsidiary Company in India, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian state or city, if otherwise available;

(vi) any part of the proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.;

Explanation.- For the purposes of this sub-clause, it is hereby clarified that the name including phrase ‘Electoral Trust’ may be allowed for Registration of companies to be formed under section 8 of the Act, in accordance with the Electoral Trusts Scheme, 2013 notified by the Central Board of Direct Taxes (CBDT):

Provided that name application is accompanied with an affidavit to the effect that the name to be obtained shall be only for the purpose of registration of companies under Electoral Trust Scheme as notified by the Central Board of Direct Taxes;

(vii) The proposed name contains the words ‘British India’;

(viii)The proposed name implies association or connection with embassy or consulate or a foreign government;

(ix) The proposed name includes or implies association or connection with or patronage of a national hero or any person held in high esteem or important personages who occupied or are occupying important positions in Government;

(x)

[Omitted]

(xi) The proposed name is identical to the name of a company dissolved as a result of liquidation proceeding and a period of two years have not elapsed from the date of such dissolution:

Provided that if the proposed name is identical with the name of a company which is struck off in pursuance of action under section 248 of the Act or under section 560 of the Companies Act, 1956(1 of 1956), then the same shall not be allowed before the expiry of twenty years from the publication in the Official Gazette being so struck off;

(xii) it is identical with or too nearly resembles the name of a limited liability partnership in liquidation or the name of a limited liability partnership which is struck off up to a period of five years;

(xiii) the proposed name include words such as ‘Insurance’,‘Bank’, ‘Stock Exchange’, ‘Venture Capital’, ‘Asset Management’, ‘Nidhi’, ‘Mutual fund’ etc., unless a declaration is submitted by the applicant that the requirements mandated by the respective regulator, such as IRDA, RBI, SEBI, MCA etc. have been complied with by the applicant;

Here it means: name include words such as Insurance, Bank, Stock Exchange, Venture capital, Asset Management, Nidhi, Mutual Fund etc., the applicant shall submit a declaration that requirements of respective regulator has been compiled with.

(xiv) The proposed name includes the word “State”, the same shall be allowed only in case the company is a government company;

(xv) The proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited;

(xvi) The name is only a general one, like Cotton Textile Mills Ltd. or Silk Manufacturing Ltd., and not Lakshmi Silk Manufacturing Co. Ltd;

(xvii) It is intended or likely to produce a misleading impression regarding the scope or scale of its activities which would be beyond the resources at its disposal:

(xviii) The proposed name includes name of any foreign country or any city in a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like Memorandum of Understanding with a company of such country:

Provided that the name combining the name of a foreign country with the use of India like India Japan or Japan India shall be allowed if, there is a government to government participation or patronage and no company shall be incorporated using the name of an enemy country. Explanation.- For the purposes of this clause, enemy country means so declared by the Central Government from time to time.

(3)

[Omitted]

(4)

[Omitted]

 (5) The applicant shall declare in affirmative or negative ( to affirm or deny ) whether they are using or have been using in the last five years , the name applied for incorporation of company or LLP in any other business constitution like Sole proprietor or Partnership or any other incorporated or unincorporated entity and if, yes details thereof and No Objection Certificate from other partners and associates for use of such name by the proposed Company or LLP, as the case may be, and also a declaration as to whether such other business shall be taken over by the proposed company or LLP or not .

(6) The following words and combinations thereof shall not be used in the name of a company in English or any of the languages depicting the same meaning unless the previous approval of the Central Government has been obtained for the use of any such word or expression-

  • Board;
  • Commission;
  • Authority;
  • Undertaking;
  • National;
  • Union;
  • Central;
  • Federal;
  • Republic;
  • President;
  • Rashtrapati;
  • Small Scale Industries;
  • Khadi and Village Industries Corporation;
  • Financial, Corporation and the like;
  • Municipal;
  • Panchayat;
  • Development Authority;
  • Prime Minister or Chief Minister;
  • Minister;
  • Nation;
  • Forest corporation;
  • Development Scheme;
  • Statute or Statutory;
  • Court or Judiciary;
  • Governor;
  • the use of word Scheme with the name of Government (s) , State , India, Bharat or any government authority or in any manner resembling with the schemes launched by Central, state or local Governments and authorities; and
  • za) Bureau

(7) For the Companies under section 8 of the Act, the name shall include the words foundation, Forum, Association, Federation, Chambers, Confederation, council, Electoral trust and the like etc. Every company incorporated as a “Nidhi” shall have the last word ‘Nidhi Limited’ as part of its name.

(8) The names released on change of name by any company shall remain in data base and shall not be allowed to be taken by any other company including the group company of the company who has changed the name for a period of three years from the date of change subject to specific direction from the competent authority in the course of compromise, arrangement and amalgamation.

Further, Stakeholders are requested to also check the Trademark search to ensure that the proposed name is not violation of provisions of Section 4(2) of the Companies Act, 2013 failing which it is liable to be rejected

Rule 9:

An application for the reservation of a name shall be made in Form No. INC.I along with the fee (1000.00/-) as provided in the Companies (Registration offices and fees) Rules, 2014 which may be approved or rejected, as the case may be, by the Registrar, Central Registration Centre.

Key Names based on the type of company are as follows:

In case of an one person company –

ABC (OPC) Private Limited

 

In case of a private limited company –

ABC Private Limited

 

In case of a public limited company –

ABC Limited

 

In case of a producer company –

ABC Producer Company Limited

 

In case of a Company licensed under Section 8 of the Companies Act, 2013 –

ABC foundation, Forum, Association, Federation, Chambers, Confederation, council, Electoral trust and the like etc.

 

In case of an Unlimited liability company –

ABC Unlimited

 

Note:

Do not enter abbreviation like “PVT”, “PVT.”, (P), “LTD” and “LTD”.

Some Important key points:

  • Approved name shall be verified by the concerned RoC user on a real time basis for immediate action. Therefore, filing of Incorporation documents in respect of approved name shall allowed as per below timelines:

  • If the eForm is approved on or before 11.00 AM of any working day then the corresponding Incorporation eForms (like eForm INC-2 /INC-7/INC-12 as an attachment to RD-1) cannot be filed before 7.00 PM of the same working day.

  • If the eForm is approved after 11.00 AM of any working day or at any time on holiday/non-working day then the corresponding Incorporation eForms cannot be filed before 7.00 PM of the next working day.

  • During verification, if the RoC user finds that the approved name ought not to have been allotted, the same shall be liable to be withdrawn by giving an opportunity of being heard to the applicant.

  • In case of NBFCs (Non-banking Financial companies) there is a requirement to maintain a minimum net owned fund as may be prescribed by the Reserve Bank of India (RBI) from time to time and no new NBFC shall commence business as such without obtaining a certificate of registration from RBI as per provisions of Reserve Bank of India Act, 1934

  • No objection certificate from the sole proprietor/partners/other associates needs to be attached if the promoters are carrying on any partnership firm, sole proprietary or unregistered entity in the name as applied for.

  • In case the name is similar to any existing company or to the foreign holding company. Then, a certified true copy of No objection certificate by way of board resolution needs to be attached.

  • Affidavit to the effect that the name to be obtained shall be only for the purpose of registration of companies under Electoral. Trust Scheme as notified by the CBDT. Electoral trust name can be proposed in case of section 8 company only.

    Here it means: If the proposed name including the phrase ‘Electoral trust’ then, affidavit executed on non-judicial stamp paper as per rule 8(2) (b) (vi) needs to be attached.

  • In case the proposed name includes such words or expressions like Board, Commission, Authority, Undertaking, National etc. for which the previous approval of Central Government is required,

  • In case of Passport number, prefix the number with zero(s) (0) to make it a 12 digit number. Example: 0000E1234567

  • In case of a proposed section 8 company, Private (One Person Company) cannot be selected. OPC class of the proposed company can be selected only in case of category ‘New Company (others)’.

  • OPC and section 8 companies cannot be unlimited company.

  • Details entered in eForm INC-1 cannot be changed at the time of filing eForm INC-2 for incorporation of OPC or eForm INC-7 for Incorporation of any other company or eForm INC-12 for grant of license. Therefore, ensure that particulars entered in this eForm are correct.

Some Major notes for Change of name of Existing Company:

  • If the eForm is filed for reservation of name seeking change of name by an existing Company and there is any change in the email ID, you can enter the new valid email ID as it shall update the company’s master data.
  • Order of Tribunal in course of compromise, arrangement and amalgamation is required to be attached in case proposed name is the name released on change of name.
  • applicant in case of new company and select one of the option from the drop-down list –Director / Manager / Company Secretary / CEO / CFO in case of an existing company

Approval/ Rejection Letter:

When an eForm is approved/rejected by the authority concerned, name approval/ rejection letter upon approval/ rejection of the eForm is generated and shall be digitally signed by the Registrar and shall be sent to the email id of the applicant or company. Rejection letter is rejected on the basis of “rejection codes defined by the Ministry.”

Here it means, The name is liable to be withdrawn at any time before registration of the company, if it is found later on that the name ought not to have been allowed and will be subject to penal proceedings under section 4(5)(ii) of the Companies Act, 2013.

Reasons for Rejection of Names:

  • Name is too general.

  • Central Government approval is not attached as per rule 8(6)

  • No Objection Certificate (by way of Resolution of the Board of the Group of Companies, etc.) not attached.

  • Name is not indicative of such related financial activities, viz., Chit Fund/ Investment/ Loan.

  • Proposed name indicates the partnership or the patronage of any National Leader/hero or of Government or any person held in high esteem positions in Government.

  • Name is resembling /closely resembling Companies/LLP.

  • Name includes a registered trademark/application to trademark registration

  • Proposed name(s) is offensive to certain section of people.

  • Proposed name(s) is attracting the provisions of section 3 of the Emblems and Names.

  • Proposed name(s) resembles closely with the popular or abbreviated description of an existing company or limited liability partnership.

  • Proposed name implies association or connection with embassy or consulate or a foreign government.

  • Proposed name includes the word “British India”.

  • Proposed name includes the name of an enemy country.

  • Proof of significance of business relations with such foreign country is not attached as the proposed name includes name of any foreign country or any city in a foreign country.

  • Proposed name combines the name of a foreign country with the use of India and there is no government to government participation or patronage.

  • Proposed name is the Hindi or English translation or transliteration of the name of an existing company or LLP in English or Hindi.

  • Includes the word “State” and the same is allowed in case of government company only.

  • Includes only words the name of a continent, country, state, city etc.

  • Is the name of the Amalgamating Company/LLP

  • 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

  • Is the name of a Dissolved (Liquidated) company/LLP

  • Is the name of a Struck off (Defunct) company/LLP

  • Proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc

  • Main objects are too wide and diverse.

  • Name has two or more diverse activity word.

  • Name starts with articles (A, An, The)

  • Name has single letter prefix,

  • Name is single word name that is vague and resembling trademark 29. Name contains the expression ARCHITECT or any derivatives thereof 30. Name only contains the word HOLDINGS without any clear activity.

  • Others

Rejection Due to Registered Trademark or is Subject matter of an application pending for Registration:

If proposed name is in resemblance with any class of Trade Mark Rules, 2002.

 

If the proposed name is based on a Registered Trademark or is subject matter of an application pending for registration under the Trade Marks Act, then approval shall be attached of such owner of the registered trademark or the applicant of such trade mark for which application for registration is pending.

 

 HOW WE CAN USE “PREFIX” FOR PROPOSED NAMES

  • Prefix should be unique name/Brand
  • Prefix can’t be single letter/word
  • Prefix does not match/Signifies its activity
  • Prefix Must not contain any Numerical
  • After prefix of the name also can’t use registered brand/TM in second word

Trademarks Objection Example:

Suppose:  LONA is a brand which applied for TM

Trademark Name

Status of TM

Department objection for Prefix

LONA

New application /Formality check passed

Not allowed to use

LONA

Objection if any

Not allowed to use

LONA

Registered/in advertisement

Not allowed to use

LONA

abandoned

allowed to use

LOONA

 

(Changed in letters which will make differences in brand)

allowed to use

LONACONA

 

(Changed in letters which will make differences in brand)

allowed to use

 

For any query related to Company Name Availability and Company Incorporation, please contact CRC Helpdesk : 0124-4832500 (option 1) Email: CRC.Escalation@mca.gov.in

 

Author
CS Shiriti Kumari
founders@compliancecalendar.in
Co-Founder
Compliance Calendar LLP

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