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These are the changes in IPCC/PCC law applicable for May,2012 exams Companies Act,1956
|Sec 17||Shifting of registered office from one state to another state||CLB||Central Govt|
|Sec. 21||Voluntary Name Change||Central Govt||ROC.|
|Sec. 22||Compulsory Name Change||Central Govt||Regional Director.|
|Sec. 25||Incorporation of Non Profit Organization||Central Govt||ROC.|
|Sec. 31||Conversion of Public to Private Company||Central Govt||ROC|
|Sec. 108(1D)||Extension of Time Limit for filing of Instrument of Transfer||Central Govt||ROC|
|section 141||Rectification of Register of charges||Company Law Board||ROC|
Companies (Passing of the Resolution by Postal Ballot) Rules, 2011
Postal Ballot voting can be made through electronic system.
The following definitions are amended :
a) “Postal Ballot” includes voting by Shareholders by postal or electronic mode instead of voting personally by presenting for transacting businesses in a general meeting of the Company.
b) “Voting by Electronic mode” means a process for recording votes by the members using a Computer based machine to display an electronic ballot and to record the vote and also the number of votes polled in favour or against such that the entire voting gets registered and counted in a electronic registry in a centralised server.
Service of Documents – Sec. 53
Green Initiative in the Corporate Governance
A Company would have complied with Section 53 of the Companies Act, if the service of document has been made through electronic mode provided the Company has obtained e-mail addresses of its members for sending the notice/documents through e-mail by giving an advance opportunity to every shareholders to register their e-mail address and changes therein from time to time with the Company.
In cases where any member has not registered his e-mail address with the Company, the service of document etc. will be effected by other modes of service as provided under Section 53 of the Companies Act, 1956.
Criteria for granting recognition as Public Financial Institution u/s 4A
a) A Company or Corporation should be established under a special Act or Companies Act being Central Act
b) Main business of company should be industrial/ infrastructural financing;
c) The Company must be in existence for at least 3 years and their financial statement should show that their income from industrial/infrastructural financing exceeds 50% of their income;
d) The net-worth of the company should be Rs.1,000 Crores;
e) Company is registered as Infrastructure Finance Company (IFC) with RBI or as an Housing Finance Company (HFC) with National Housing Bank;
Participation by Shareholder in General Meeting through Electronic Mode Guidelines
1. Electronic mode means video conference facility i.e., audio-visual electronic communication facility employed which enables all persons participating in that meeting to communicate concurrently with each other without an intermediary, and to participate effectively in the meeting.
2. The notice of the meeting must inform Shareholders regarding availability of participation through video conference, and provide necessary information to enable shareholders to access the available facility of video conferencing.
3. The Chairman of the meeting and Secretary shall assume the following responsibilities –
a) To safeguard the integrity of the meeting via video conferencing.
b) To ensure proper video conference equipment/facilities.
c) To prepare the minutes of the meeting.
d) To ensure that no one other than the concerned shareholder or proxy to the shareholder is attending the meeting through electronic mode.
4. If a statement of a participant in the meeting via video conferencing is interrupted, the Chairman of the meeting or Secretary shall request for a repeat and if need be, the Chairman or Secretary shall repeat what he heard the participant was saying for confirmation or correction.
5. A Company is required to have its Annual General Meeting either at the registered office of the company or at place within the city, town or the village in which registered office of the company is situated. (Sec. 166)
6. At least 5 members in case of public company and 2 members in case of other company have to be personally present and shall be the quorum for the general meeting (Sec. 174). In a general meeting, where shareholders are allowed to participate through electronic mode, the quorum as required u/s 174 as well as chairman of the meeting shall have to be physically present at the place of the meeting.
7. To provide larger participation and for curbing the cost borne by the Shareholders to attend general meetings, listed companies may provide video conferencing connectivity during such meetings at least 5 places in India. It is recommended that these places would be situated all over India in such a way that it covers top 5 States/UTs based on maximum number of members or at least 1000 members, whichever is more, residing as per the address registered with the depositories.
NAME AVAILABILITY GUIDELINES, 2011
1. As per provisions contained in Sec 20 of the Companies Act, 1956, no company is to be registered with undesirable name.
A proposed name is considered to be undesirable if it is identical with or too nearly resembling with:
(i) Name of a company in existence and names already approved by ROC
(ii) Name of a LLP in existence or names already approved by Registrar of LLP or
(iii) A registered trade-mark or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999.
2. While applying for a name in the prescribed e-form-1A, using Digital Signature the applicant shall be required to furnish a declaration to the effect that:
(i) he has used search facilities available on the portal of the Ministry of Corporate Affairs (MCA) for checking the resemblance of the proposed name(s) with the companies and Limited Liability Partnerships (LLPs) respectively already registered or the names already approved.
(ii) the proposed name(s) is/are not infringing the registered trademarks or a trademark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999;
(iii) the proposed name(s) is/are not in violation of the provisions of Emblems and Names (Prevention of Improper Use) Act, 1950
(iv) the proposed name(s) is not such that its use by the company will constitute an offence under any law for the time being in force.
(v) the proposed name is not offensive to any section of people, e.g., proposed name does not contain words or phrases that are generally considered a slur against an ethnic group, religion, gender
3. There is an option in the e-form 1A for certification by practicing CA/CS/CWA who will certify that he has used the search facilities available on the portal of the Ministry of Corporate Affairs (MCA) for checking the resemblance of the proposed name(s) .The professional will also certify that the proposed name is not an undesirable name under the provisions of section 20 of the Companies Act, 1956 and als is in conformity with Name Availability Guidelines, 2011.
4(i) Where e-form 1A has been certified by the professional, the name will be made available by the system online to the applicant without backend processing by the Registrar of Companies (ROC).
(ii) Where a name has been made available online on the basis of certification of practicing professional, if it is found later on that the name ought not to have been allowed u/s 20 read with these Guidelines, the professional shall also be liable for penal action under provisions of the Companies Act, 1956 in addition to the penal action under Regulations of Institutes.
(iii) Where e-form 1A has not been certified by the professional, the proposed name will be processed at the back end office of ROC and availability or non availability of name will be communicated to the applicant.
5. The name, if made available, is liable to be withdrawn anytime before registration of the company, if it is found later on that the name ought not to have been allowed. However, ROC will pass a specific order giving reasons for withdrawal of name, with an opportunity to the applicant of being heard, before withdrawal of such name.
6. The name, if made available to the applicant, shall be reserved for 60 days from the date of approval. If, the proposed company has not been incorporated within such period, the name shall be lapsed and will be available for other applicants.
7. Even after incorporation of the company, the Central Govt has the power to direct the company to change the name u/s 22, if it comes to his notice or is brought to his notice through an application that the name too nearly resembles that of another existing company or a registered trademark.
8. In determining whether a proposed name is identical with another, the following shall be disregarded:
(i) The words Private, Pvt, Pvt., (P), Limited, Ltd, Ltd., LLP, Limited Liability Partnership;
(ii) The words appearing at the end of the names – company, and company, co., co, corporation, corp, corpn, corp.;
(iii) The plural version of any of the words appearing in the name;
(iv) The type and case of letters, spacing between letters and punctuation marks;
(v) Joining words together or separating the words, as this does not make a name distinguishable from a name that uses the similar, separated or joined words. Such as Ram Nath Enterprises Pvt. Ltd. will be considered as similar to Ramnath Enterprises Pvt. Ltd.;
(vi) The use of a different tense or number of the same word, as this does not distinguish one name from another. Such as, Excellent Industries will be similar to Excellence Industries and similarly Teen Murti Exports Pvt. Ltd. will be to Three Murti Exports Pvt. Ltd.;
(vii) Using different phonetic spellings or spelling variations, as this does not distinguish one name from another. For example, J.K. Industries limited is existing then J and K Industries or Jay Kay Industries or J n K Industries or J & K Industries will not be allowed. Similarly if a name contains numeric character like 3, resemblance shall be checked with ‘Three’ also;
(viii) The addition of an internet related designation, such as .COM, .NET, .EDU, .GOV, .ORG, .IN, as this does not make a name distinguishable from another, even where (.) is written as ‘dot’;
(ix) The addition of words like New, Modern, Nav, Shri, Sri, Shree, Sree, Om, Jai, Sai, The, etc., as this does not make a name distinguishable from an existing name such as New Bata Shoe Company, Nav Bharat Electronic etc.
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.
For example, ‘Unique Marbles Delhi Limited’ can not be allowed if ‘Unique Marbles Limited’ is already existing; Such names may be allowed only if no objection from the existing company by way of Board resolution is produced/ submitted;
(x) Different combination of the same words, as this 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” should not be allowed;
(xi) Exact Hindi translation of the name of an existing company in English especially an existing company with a reputation. For example, Hindustan Steel Industries Ltd. will not be allowed if there exists a company with name ‘Hindustan Ispat Udyog Limited’;
9. In addition to above, the user shall also adhere to following guidelines: –
(i) It is not necessary that the proposed name should be indicative of the main object.;
(ii) If the Company’s main business is finance, housing finance, chit fund, leasing, investments, securities or combination thereof, such name shall not be allowed unless the name is indicative of such related financial activities, viz., Chit Fund/ Investment/ Loan, etc.;
(iii) If it includes the words indicative of a separate type of business constitution or legal person or any connotation thereof, the same shall not be allowed. For eg: cooperative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.;
(iv) Abbreviated name such as ‘BERD limited’ or ‘23K limited’ cannot be given to a new company. However the companies well known in their respective field by abbreviated names are allowed to change their names to abbreviation of their existing name (for Delhi Cloth Mills limited to DCM Limited, Hindustan Machine Tools limited to HMT limited)
(v) If the proposed name is identical to the name of a company dissolved as a result of liquidation proceeding should not be allowed for a period of 2 years from the date of such dissolution.
(vi) If the proposed names include words such as ‘Insurance’ , ‘Bank’ , ‘Stock Exchange’ , ‘Venture Capital’ , ‘Asset Management’ , ‘Nidhi’ , ‘Mutual fund’ etc., the name may be allowed with a declaration by the applicant that the requirements mandated by the respective Act/ regulator, such as IRDA, RBI, SEBI, MCA etc. have been complied with by the applicant;
(vii) If the proposed name includes the word “ State” , the same shall be allowed only in case the company is a government company. Also, if the proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited, the same shall not be allowed;
(viii) If the proposed name contains 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 or any State Government under any law for the time in force, unless the previous approval of Central Government has been obtained for the use of any such word or expression;
(ix) Change of name shall not be allowed to a company which is defaulting in filing its due Annual Returns or Balance Sheets or which has defaulted in repayment of matured deposits and debentures and/or interest thereon;
Online incorporation of companies within 24 hours
In order to give ease to the corporate world to carry business in India, the Ministry of Corporate Affairs has been simplifying the procedures under the Companies Ac t, 1956. As another step in this direction, the Ministry is modifying the incorporation procedures to enable promoters to get their companies incorporated online within 24 hours.
Now, the Ministry is also simplifying the procedures to approve incorporation applications forms online. In case the e-forms 1, 18, 32 and e-form for MOA and AOA have been certified by practicing professional regarding the correctness of the information and declarations given by the subscribers, the application shall be processed electronic ally and the digital certificate of incorporation shall be issued immediately online by the ROC.
4. The above facility is optional to the existing process of backend processing of applications by ROC where no such certifications have been done by the practicing professional.
5. If any of the information or declaration given by the company or certificate given by the professional in the e-forms and attachment(s) is found to be wrong or illegal then the subscribers,
declarant(s) and professional(s) shall be liable for penal action under Companies Act, 1956 in addition to penal action prescribed by professional institutes.
6. Where a company has been registered online on the basis of declarations made by the subsc ribers, declarant(s) and certifications by the professional(s) given in the e-form, if it is found later on that the company ought not to have been registered under provisions of the Companies Ac t, 1956 read with Rules and Regulations made therein, the Registrar of Companies shall take necessary ac tion to put the company in state of suspended animation and initiate the process of revocation of the registration of the company after giving an opportunity of being heard.
7. It is expected that the above immediate online approvals of DIN, availability of name and registration of e-forms-1, 18, 32 and MOA and AOA, the complete process of incorporation of a company can be completed within 24 hours.