Procedure of shifting of registered office within local limits, within the same state and from one state to another under Companies Act 2013 by CS Shiriti Kumari


PROCEDURE FOR SHIFTING REGISTERED OFFICE OF THE COMPANY

Introductory Part:

‘Registered Office’ of a company is the address of its principal place of business activities and to which the entire official communication is sent by Ministry of Corporate Affairs (MCA) and  Registered Office is capable of receiving and acknowledging all communications and notices as may be addressed to it. The address of the situation of Registered Office is very important from the point of view of Government Departments, Investors, Banks, Shareholders and the General Public and many other related parties. Every Company is governed in accordance with the provisions of Companies Act 2013; This is very important because without having the Registered Office in place and proper verification duly filed there under, the company cannot commence its business under Section 12(1). Therefore, it is mandatory for all companies to keep the Ministry of Corporate Affairs informed about the location of such Registered office and changes thereto from time to time.

Registered Office is the office registered with the registrar of companies. The registered office of the company may be different from corporate office.

A change in the registered office address may be required due to various reasons, sometimes as the factor that company is looking for more growth in terms of resources, public demand, Govt policies, better management etc.

"Further, the formalities and process for changing the Registered Office of the Company will depend on if the Company is changing address within the same city/town/village or if the Company is changing address from one city/town/village to another city/town/village or if the Company is changing its Registered Office from one State to another State."

Main provisions related to alteration of MOA due to change in Registered Office are given in Section 13 of Companies Act 2013 read with Companies (Incorporation) Rules 2014.

The significance of Registered Office: -

Following points from the Companies Act will highlight the significance of the Registered Office of a Company:-

  • Every company has to mandatorily mention the state in which its registered office is situated in its situation clause of “Memorandum of Association” at the time of incorporation. 
  • Companies Act, 2013 mandates to have a Registered Office of every company since its beginning of the business or from the 30th day from the date of its incorporation. 
  • Every notice and Communication served on the registered office of the company will be treated as served to the company. 
  • Every company needs to affix the registered office address at the outside of each and every place where its business is carried on, even every letter or communication should print with the registered office address.
  • All books of accounts shall be kept at the registered office of the company. But if they are kept at any other place in India as decided by the Board of Directors, the company shall send a notice in writing to the Registrar of that place, mentioning the full address of the place.
  • Registered Office of a Company can be a residence. There is no requirement for the registered office to be a commercial or industrial property. Further Registered Office of a Company or LLP can be the residence of one of the Director or Managing Partner.
FOLLOWING ARE SOME OF THE WAYS TO CHANGE REGISTERED OFFICE:

1st Case

2nd Case

3rd Case

 

4th Case

 

Change of registered office from one place to another place within the limit of the same city, town or village.

 

Change of registered office to a place outside the local limits of the existing place but within the same state under the jurisdiction of the same Registrar of Companies.

 

Change of registered office to a place from the jurisdiction of one registrar to that of another registrar within the same state.

Change of registered office from one state to another.


We will be discussing broadly "Change of registered office from one state to another" as major change in the management or interest to the stakeholders.

 [Section 12 & 13(4) Of Companies Act, 2013 and Rule 30 of The Companies (Incorporation) Rules, 2014]

Applicability:
 

This Section is applicable to all companies.

Memorandum of association contains following clauses:
(a) Name of the Company,
(b) The state of India where the registered office of the company is situated,
(c) Main objects of the Company and matters considered necessary in furtherance thereof,
(d) Liability of members of the company; and
(e) The authorised share capital of the company.

The alteration made under section 13 shall have any effect until it has been registered. For shifting of registered office from one State to another State of India, prior approval of Central Government (Regional Director) is required with application in such form and manner as may be prescribed (INC-23 along with physical submission of application),

The Central Government shall dispose of the application under sub-section (4) within a period of sixty days and before passing its order may satisfy itself that the alteration has the consent of the creditors, debenture-holders and other persons concerned with the company or that the sufficient provision has been made by the company either for the due discharge of all its debts and obligations or that adequate security has been provided for such discharge [section 13 (5)].;

Stepwise procedure for shifting of registered office from one state to another state:

Forms need to file while proceeding of shifting of registered office-

MGT 14 For the special resolution

 

Within 30 days of passing Special Resolution

 

GNL 2 For filing copy of an application to ROC

 

Before the filing of form INC 23 but within 60 days from the date of EGM;

 

INC 23 For seeking approval of Regional Director

 

At least 1 month after serving notice to creditors and publication of the newspaper advertisement

 

INC 28 For filing copy of RD order with ROC

 

Within 30 days of the order passed by RD

 

INC 22 For shifting of Registered Office

 

Within 30 days of board resolution as taken note for approval of final board after receiving an order from RD but must be filed after the form INC 28 got approved by respective ROC (only required to file in one ROC from where the company is going to move ;)

 


Step 1:

  1. Send Board Meeting notice at least 7 days before the date of Board Meeting held for :
    • Matter for Shifting of Registered office form one state to another state.
    • Fixing the day, date, time & venue for convening the Extra-ordinary general meeting.
    • Approval of Notice for Calling of Extraordinary General Meeting (EGM) for passing a special resolution for shifting of registered office.
    • Authorization to Director / Company Secretary/ Authorised Representative to sign the documents.
    • Engagement of Company Secretary/ Authorised Representative to represent the company before Regional Director.

Note:

For Listed Company: There shall be at least seven days before of the Board Meeting, publish notice of the board meeting in the newspaper. Simultaneously, send the copies of the said publication to the Stock exchanges.

Step 2:

  1. Conduct  the Board Meeting  and approve the following :
    1. Resolution Shifting of Registered office from one state to another state.
    2. Notice for Calling of EGM for passing the special resolution for shifting of registered office.
    3. Authorization to Director/ Company Secretary to sign the documents.
    4. Engagement of Company Secretary/ Authorised Representative to represent the company before Regional Director.

For the listed Company has to follow more:

  • Intimate the Stock Exchanges about the passing of a resolution in the board meeting.
  • Send Notice of the EGM to at least 21 days clear days before the members of the company. Simultaneously, send the copies of the said notice to the Stock exchanges.
  • Publish the notice of EGM in newspaper and send the copy of such publication to the stock exchanges.

[1. Shifting of Registered office form one state to another state not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar ;

2. Shifting of registered office shall not be allowed where any inquiry, inspection or investigation has been initiated under the Act against the company or any prosecution under the Act is pending against the company]

Step 3:

  1. Conduct EGM of the company and pass the special resolution for shifting of registered office from one state to another state and authorize Director/ Company Secretary to sign/ file/ deal with the department.

For the listed Company has to follow more:

 

  • Intimate the conclusion of the EGM to the stock exchanges.
     

Step 4: File eform MGT-14 with ROC within 30 days from the date of the special resolution passed in the EGM.

MGT-14 Documents Required

  • Copy(s) of resolution(s) along with copy of explanatory statement under section 102
  • Altered memorandum of association
  • Certified true copy of the special resolution
  • A copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed, giving details of the number of votes cast in favour or against the resolution
  • Consent of shareholders if any shorter notice along with the list of shareholders as on date. 

Step 5: Prepare the application for shifting of registered office to be filed to Regional Director. Submit the copy of the said application with Chief Secretary with the respective state in letter and to ROC in the specified form (GNL-2).

Note:

There shall be attached to the application, a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of the application by not more than one month setting forth the following details, namely:-

  • the names and address of every creditor and debenture holder of the company;
  • the nature and respective amounts due to them in respect of debts, claims or liabilities: 

Provided that  the  applicant  company  shall  file  an  affidavit, signed  by  the  Company  Secretary of the company, if any and not less than two directors of the company, one  of whom shall be a managing director, where there is one, to the effect that they have  made a full enquiry into the affairs of the company and, having done so, have formed  an opinion that the list of creditors is correct, and that the estimated value as given in  the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the company to their knowledge;

*In case, if one of the directors is residing in the foreign country, he shall give the affidavit from abroad after getting it notarized there.

Step 6:

Keep note:-

  1. A duly authenticated 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;
  2. Company shall The company shall at least fourteen days before the date of hearing :
    1. advertise the application in the Form No.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 the English language in an English newspaper circulating in that district;
    2. serve, by registered post with acknowledgement due, individual notice(s), to the effect set out in clause (a) on each debenture-holder and creditor of the company; and
    3. Serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the Securities and Exchange Board of India, in the case of listed companies and to the regulatory body, if the company is regulated under any special Act or law for the time being in force.

[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 the Central Government on or before the 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 have been discharged or have determined or has been secured.]

Step 7:

  1. File eform GNL-2 with ROC within 60 days OR (as earliest possible) from the date of the special resolution passed in the EGM.

GNL-2

Documents Required

 

 

[Submission of documents  to the ROC

or for intimation  to shift the Registered Office

from one state

to another state or from the jurisdiction of one Registrar to another Registrar within the same State]

Copy(s) of resolution(s) along with the copy of the explanatory statement under section 102

Altered memorandum of association

Certificate of Incorporation

Certified true copy of the special resolution

A copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed, giving details of the number of votes cast in favour or against the resolution

Consent of shareholders if any shorter notice along with list of shareholders as on date.

  • An affidavit verifying the Application filed (Petition);
  • An affidavit verifying the list of creditors and affairs of the company;
  • Affidavit from Directors in terms of rules ( comply the provisions of Section 13 of the Companies Act, 2013 and Rule 30 of the Companies (Incorporation) Rules, 2014 ).
  • An affidavit from the directors of the company that no employee shall be retrenched as a consequence of shifting of the registered office from one state  to  another  state;
  • An affidavit verifying the no  enquiry, inspection, investigation and prosecution are pending against the company under any Act applicable on company and undertake that in future if any demand arises from any Statutory Authorities like Municipal Corporation, Electricity Department, Income tax Department etc. or any stakeholders that shall be repaid by the company without raising any objection

 

It is mandatory to attach disclosure in case if there is any prosecution is pending against  the  company  or  if any  inquiry,  inspection  or  investigation  is initiated against the company

Shall also be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexure to the Registrar, SEBI, the Chief Commissioner of Income Tax Department or any other regulatory authority and Chief Secretary of the State Government or Union Territory where the registered office is situated at the time of filing the application.

Certificate from the Statutory Auditor certifying the list of creditors

Copy of newspaper advertisement for notice of shifting the registered office. It is mandatory to attach the copy of newspaper publication published in Hindi and English  circulated in that district;

The notice is required to follow two major limits/conditions:

1.  To be published at least 14 days before hearing in case of shifting of registered office from one state to another;

2.  And not less than one month before filing the application (INC-23) in case shifting of registered office within the state.

Latest filed Audited Balance sheet along with Auditors report and annexure.

The list of creditors and debenture holders entitled to object to the application;

List of creditors and debenture holders not older than one Month

The document relating to payment of application fee

a copy of Board Resolution or Power of Attorney or the Vakalatnama,  as the case may be

 

Copy of objections (if received any)

 

A copy of the No Objection Certificate from the Reserve Bank of India where the applicant is a registered Non-Banking Financial Company;

 

Form MGT-14 along with paid challan

 
9. File eform INC 23 and attached the following documents :

Shall be filed at least 1 month after serving notice to creditors and publication of newspaper advertisement;

INC 23 Documents Required

 

 

[ Application to Regional Director or for Approval  to shift the Registered Office

from one state

to another state or from the jurisdiction of one Registrar to another Registrar within the same State]

Copy(s) of resolution(s) along with the copy of the explanatory statement under section 102

Altered memorandum of association

Certificate of Incorporation

Certified true copy of the special resolution

A copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed, giving details of the number of votes cast in favour or against the resolution

Consent of shareholders if any shorter notice along with the list of shareholders as on date.

  • An affidavit verifying the Application filed (Petition);
  • An affidavit verifying the list of creditors and affairs of the company;
  • Affidavit from Directors in terms of rules ( comply the provisions of Section 13 of the Companies Act, 2013 and Rule 30 of the Companies (Incorporation) Rules, 2014 ).
  • An affidavit from the directors of the company that no employee shall be retrenched as a consequence of shifting of the registered office from one state  to  another  state ;
  • An affidavit verifying the no  enquiry, inspection, investigation and prosecution are pending against the company under any Act applicable on company and undertake that in future if any demand arises from any Statutory Authorities like Municipal Corporation, Electricity Department, Income tax Department etc. or any stakeholders that shall be repaid by the company without raising any objection

 

It is mandatory to attach disclosure in case if there is any prosecution is pending against  the  company  or  if any  inquiry,  inspection  or  investigation  is initiated against the company

Shall also be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexure to the Registrar, SEBI, the Chief Commissioner of Income Tax Department or any other regulatory authority and Chief Secretary of the State Government or Union Territory where the registered office is situated at the time of filing the application.

Certificate from the Statutory Auditor certifying the list of creditors

Copy of newspaper advertisement for notice of shifting the registered office. It is mandatory to attach the copy of newspaper publication published in Hindi and English  circulated in that district;

The notice is required to follow two major limits/conditions:

    1. To be published at least 14 days before hearing in case of shifting of registered office from one state to another;

 

    1. And not less than one month before filing the application (INC-23) in case shifting of registered office within the state.

Latest filed Audited Balance sheet along with Auditors report and annexure.

The list of creditors and debenture holders entitled to object to the application;

List of creditors and debenture holders not older than one Month

The document relating to payment of application fee

a copy of Board Resolution or Power of Attorney or the Vakalatnama,  as the case may be

 

Copy of objections (if received any)

A copy of the No Objection Certificate from the Reserve Bank of India where the applicant is a registered Non-Banking Financial Company;

Form MGT-14 along with paid challan

Form GNL-2 along with paid challan
Simultaneously, file the above-said documents in original hard copy to the Regional Director office along with filed form and challan. There is no filing fees by way of demand draft required to be enclosed with the petition as the filing fees are paid while filing Form INC- 23 with Regional Director Office












































































































Notes:

      1. Petition should not be prepared in the letterhead, shall be printed on plain white legal page/sheet;
      2. The petition along with the enclosure should be serially numbered and attached all annexure in form of the cover letter to RD;
      3. Revenue ticket must be affixed on a petition as rate applicable;
  1. On the filing of eform, Regional Director shall intimate the date of hearing.
  2. A hearing may take place at the Regional Director office and it should be represented by the company or practising professional or advocate. The creditors, if any and the representatives of the company may also represent and are heard before making any order.
  3. Attend the hearing before the Regional Director.
  4. After being satisfied, Regional Director may make an order confirming the alteration on such terms and conditions, if any, as it thinks fit, and may make such order as to costs as it thinks proper.
  5. After receiving the Regional Director order for shifting the registered office, the company is required to file the certified copy of the order with the ROC along with Form No. INC- 28 within one month of receipt of certified copy along with the printed copy of the altered memorandum of association. Only when Form INC-23 is approved, Form INC- 28 could be filed;

INC- 28 Documents Required

  • Copy(s) of Order passed by Regional Director;
  • *Revenue ticket must be affixed as rate applicable;
  • Altered Memorandum of Association

Only when Form INC-23 is approved, Form INC- 28 could be filed;

Note:

  • If Order has not been passed on due time, Condonation of delay has to be filed with the concerned department and after receiving condonation order and after filing due penalty only can be filed INC-28.
  1. File Form No. INC- 22 with the new ROC for the situation of the registered office within 30 days of the change.

INC- 22 Documents Required

  • Utility Bills as Proof of Registered Office Address
  • Rent agreement or Proof that the company is authorized to use the address as the registered office of the company
  • Certified true copy of Board resolution
  • Consent for use of premises as the registered office
  • List of all the Companies (specifying their CIN) having the same registered office address, if any

Intimate the Stock Exchanges and another government department about such change. 

[Each stationery, banner, signboard, bills, invoice etc. should show the new address and necessary advice should be sent to shareholders, debenture holders, and other concerned parties;]

Contravention of the section:

Every officer who is in Default shall be liable to a penalty of Rs.1000 for every day during which the default continues but not exceeding Rs. 1 Lakh.

Filing and payment

Forms have to be filed electronically on the MCA website under the digital signature of anyone Director of Company Secretary of the Company and the filing fees also need to be paid electronically at the time of filing itself.

Jurisdiction of Regional Offices:

In which Jurisdiction company need to file an application-

The company has to file an application to the jurisdiction of the present address from where the desire to change the office location will file the application for approval.

Region

Jurisdiction

North Region at Delhi

*earlier it was in Noida, which is shifted to Delhi.

 

States of Jammu and Kashmir, Punjab, Himachal Pradesh, Haryana, National Capital Territory of Delhi, Uttar Pradesh, Uttarakhand and Union Territory of Chandigarh

Southern Region at Chennai

 

States of Andhra Pradesh, Karnataka, Tamil Nadu, Kerala and Union Territory of Lakshadweep, Union Territory of Andaman and Nicobar Islands and Puducherry

Eastern Region at Kolkata

 

States of Bihar, Jharkhand, Orissa, West Bengal

Western Region at Mumbai

 

States of Maharashtra, Goa and Union Territory of Dadra and Nagar Haveli and Daman and Diu

North Western Region at Ahmedabad

 

States of Gujarat, Rajasthan, Madhya Pradesh and Chattisgarh

 

North Eastern at Region Guwahati

 

States of Meghalaya, Assam, Arunachal Pradesh, Nagaland, Mizoram, Manipur and Tripura

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