Debenture Redemption Reserve

The Ministry of Corporate Affairs has amended the Companies (Share Capital & Debentures) Rules by removing Debenture Redemption Reserve requirement for Listed Companies, NCFCs and HFCs.

The decision has been taken in pursuance of the Budget announcements for 2019-20 by Union Finance & Corporate Affairs Minister Smt. Nirmala Sitharaman and the Government’s objectives of providing greater ‘Ease of Doing Business’ to companies in the country, as part of its 100 Days Action Plan.

Through these amendments, the provisions relating to creation of Debenture Redemption Reserve (DRR) have been revised with the objective of;

1. removing the requirement for creation of a DRR of 25% of the value of outstanding debentures in respect of listed companies, NBFCs registered with RBI and for Housing Finance Companies registered with National Housing Bank (NHB) both for public issue as well as private placements;
2. Reduction in DRR for unlisted companies from the present level of 25% to 10% of the outstanding debentures.

Hitherto, Listed Companies had to create a DRR for both Public Issue as well as Private Placement of Debentures, while NBFCs & HFCs had to create DRR only when they opted for Public Issue of Debentures.  It is aimed at creating a level-playing field between NBFCs, HFCs and listed companies’ on the one hand and also between them and Banking Companies & All India Financial Institutions on the other, which are already exempted from DRR.

The measure has been taken by the Government with a view to reducing the cost of the capital raised by companies through issue of debentures and is expected to significantly deepen the Bond Market.

The rules, while retaining DRR requirement for Unlisted Companies, provide for reduction from a DRR of 25% to a DRR of 10% for such companies, so as to safeguard interests of investors.

differential voting rights

PIB press release dated 16th August, 2019

The Ministry of Corporate Affairs has amended the provisions relating to issue of shares with Differential Voting Rights (DVRs) provisions under the Companies Act with the objective of enabling promoters of Indian companies to retain control of their companies in their pursuit for growth and creation of long-term value for shareholders, even as they raise equity capital from global investors.

            The key change brought about through the amendments to the Companies (Share Capital & Debentures) Rules brings in an enhancement in the previously existing cap of 26% of the total post issue paid up equity share capital to a revised cap of 74% of total voting power in respect of shares with Differential Voting Rights of a company.

Another key change brought about is the removal of the earlier requirement of distributable profits for 3 years for a company to be eligible to issue shares with Differential Voting Rights.

            The above two initiatives have been taken by the Government in response to requests from innovative tech companies & startups and to strengthen the hands of Indian companies and their promoters who have lately been identified by deep pocketed investors worldwide for acquisition of controlling stake in them to gain access to the cutting edge innovation and technology development being undertaken by them.

The Government had noted that such Indian promoters have had to cede control of companies which have prospects of becoming Unicorns, due to the requirements of raising capital through issue of equity to foreign investors.

Alongside the above two changes, another major step taken is that the time period within which Employee Stock Options (ESOPs) can be issued by Startups recognized by the Department for Promotion of Industry & Internal Trade (DPIIT) to promoters or Directors holding more than 10% of equity shares, has been enhanced from 5 years to 10 years from the date of their incorporation.

Commencement of Business

MCA has vide the Companies Ordinance 2019 which has been promulgated on 14th January, 2019 introduced a new section 10A in the Companies Act, 2013 which requires that every company incorporated after the above date and having share capital shall not commence business nor exercise its borrowing powers unless it has filed a declaration within 180 days from the date of incorporation and also filed document pertaining to its registered office.

There is the penalty of Rs.50,000 on the company and Rs.1000 per day on each officer in default subject to a maximum of Rs.100,000/-

Where the aforesaid declaration has not been filed within 180 days of the date of incorporation, then the Registrar may, where he is of the opinion, that the company is not carrying on any business or operations, start proceedings to remove the name of the company from its records. Of course the penalty clause will still be applicable.

Form INC-20A is the form which has been introduced by the MCA and the only mandatory documentation required is the proof that the subscriber has paid in his subscription money for the value of shares which he has agreed to subscribe via the memorandum of association. A copy of the cheque issued by the subscriber and a copy of the bank statement showing the credit in the company's bank account should suffice for the purpose. Which also means that the bank account can be opened by the company but actual business like invoicing etc. cannot commence until this declaration has been filed.

Originally this provision was introduced vide Companies Amendment Ordinance 2018 w.e.f  2nd November, 2018 but this 2019 Ordinance replaces the old one.

So one more compliance for a company after its incorporation in India. 

deposits rules - amendment

MCA has vide its notification dated 22nd January, 2019 amended the Companies (Acceptance of Deposits), Rules, 2014. The salient features of the amendments are as follows:

1) Any amount received by a company from Real Estate Investment Trusts will be treated as exempt deposits as per amendment to 2(1)(c)(xviii);

2) In Rule 16, an explanation has been added which says that form DPT-3 shall be used for filing return of deposit or particulars of transaction not considered as deposit, or both, by every company, other than government company.

This means that particulars of exempted deposits such as unsecured loans from directors, their relatives, shareholders (within the limit), inter-corporate borrowings etc. all need to be reported in this format.

Further, fail to understand why government companies are exempted from this requirement. If the government is serious about corporate governance, then in my view even government companies should have been asked to comply.

Rule 16 pertains to a return of deposits to be filed with the Registrar in form DPT-3.

3) Rule 16A has been amended by inserting a sub-rule (3), which states that every company, other than a government company,  shall file a one time return of outstanding receipt of money or loan by a company but not considered as deposits, from 1st April, 2014 to the date of the notification of this amendment i.e. 22nd January, 2019 in form DPT-3 within 90 days from the date of publication of this notification alongwith fees.

Rule 16A pertains to disclosures in the financial statements and Rule 16 pertains to return of deposits. Unable to comprehend why this amendment has been carried out in Rule 16A rather than Rule 16 which is the correct rule for this subject matter, which is yet another return. Especially when they have made an amendment to Rule 16 giving an explanation as above, amendment of this item in the Rule 16 would have been apt. Another feature I have observed is the bad drafting in the sub-rule (3). They have mentioned "outstanding receipt of money or loan by a company" it should have been "outstanding receipt of money or loan received by a company."

It is also not clear, "outstanding" as on what date - 22nd January, 2019 or the last audited financial year ended date i.e. 31st March, 2018.

It is also not clear whether this one time return is required to be audited by the auditors of the company as normally DPT-3 is required to be so audited if filed every financial year.

Here also unable to comprehend why the government companies are exempt from this requirement. Frankly, if the Indian government is serious about corporate governance then they should make an example out of  the government companies in asking them to comply equally with non government companies.

So another one time return to be filed by all the companies in India along with the requisite fees. So an added one time compliance like the KYC one which came in August- September, 2018. This form DPT-3 to be filed within 90 days i.e. on or before 21st April, 2019. Its going to be mayhem in India Inc. because the 2nd round of KYC compliance will start from 1st April, 2019 onwards and that will run for a month and then this compliance will simultaneously run in April 2019. Knowing the tendency and propensity of companies to sleep until the last minute, its going to be mayhem in April, 2019

So much for ease of doing business in India.

registration of charges

MCA has made changes to section 77 of the Companies Act, 2013 vide the Companies Ordinance, 2019 which has been gazetted on 12th January, 2019.

Earlier section 77 allowed charges to be filed within 300 days of its creation. Now that 300 days period has been reduced to 60 days. Under the old Companies Act, 1956, the charges were required to be filed within 30 days of its creation failing which the matter has to be settled by filing a extension of time application to the then Company Law Board.

Under the Companies Act, 2013 when it was first enacted, this period was enhanced to 300 days as a measure of ease of doing business.

Now again it has been reduced to 60 days from the date of its first creation.

If the charges are created before the Companies Act Ordinance 2019 then still the charges can be filed within 300 days, but if the charges are created after the Ordinance has come into force, i.e. 12th January, 2019, then 60 days is the time limit. Even for the 60 days, there will be additional filing fees after 30 days.

If the registration is not made within 300 days under the old provision, then it can still be made within 6 months of the Ordinance coming into force with additional filing fees being paid. This means that the government has given sufficient time for filing of the charges, if the charges were created before the Ordinance came into force - 300 days + 6 months after the ordinance

If the charges are created after the Ordinance has come into force and still the form is not filed within 60 days, then on application further 60 days is given, but here the additional fees will be on ad valorem basis. The ad valorem basis will be prescribed by the government.

appointment of KMP

Section 203(5) of the Companies Act, 2013 has been amended vide Companies Ordinance, 2019 as follows:

Section 203(5) after amendment reads as follows:

"If any company makes a default in complying with the provisions of this section, such company shall be liable to a penalty of Rs.500,000 and every director and KMP of the company who is in default, shall be liable to a penalty of Rs.50,000 and where default is a continuing one, with a further penalty of Rs.1000/- per day after the first day, during which such default continues but not exceeding Rs.500,000/-.

The earlier section mentioned penalty of not less than Rs.100,000 on the company, but which may extend to Rs.500,000/- Now it is one figure of Rs.500,000/- All other provisions are the same except the wordings earlier was "shall be punishable with fine" has been replaced with  "shall be liable to penalty".

Unable to comprehend the meaning of this phrase change.

Section 203 pertains to appointment of managing director, CEO or manager, company secretary and chief financial officer in certain specified companies. The specifications are contained in Rule 8 of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 wherein it is stated that every listed company and every public company having paid up share capital of Rs.10 crore or more shall have whole-time key managerial personnel. It also applies to private company having paid up share capital of Rs.5 crores or more and they are required to appoint whole time company secretary.

Cost Audit Report

Under Rule 6(6) of the Companies (Cost Records and Audit) Rules, 2014 every company which is covered under these Rules, is required to furnish to the Central Govt., a copy of the Cost Audit Report, within 30 days of the receipt of the cost audit report by the company, in XBRL format in form CRA4. The cost auditor is required to furnish his report to the company within a period of 180 days from the closure of the financial year to which it pertains and the Board of Directors of the company is required to examine the same. This is provided in Rule 6(5) ibid.

Now vide an amendment to the aforesaid Rules,  where a company has got an extension of time to hold AGM, then the company may file the cost audit report in form CRA4 within the extended time for filing the financial statements.

A proviso has been added to Rule 6(6) as follows:

"Provided that the companies which have got extension of time for holding AGM under section 96(1) of the companies act, 2013 may file form CRA4 within the extended period of filing financial statements under section 137 of the companies act, 2013."

issue of shares at a discount

Issue of shares at a discount is covered under section 53 of the companies act, 2013. A company cannot issue shares at a discount and any such issue shall be void. Subsequently vide the 2017 amendment, issue of shares at a discount was allowed for limited provisions of converting debt into shares pursuant to a statutory resolution plan or debt restructuring scheme in accordance with the guidelines of RBI. So basically the debt restricting scheme should be under the aegis of RBI. The statutory resolution plan can be under IBC also.

Now vide the 2018 Ordinance, contravention of this section has been made more stringent. Now where any company violates this section, the company and every officer who is in default shall be liable to a penalty which shall be equal to the amount raised through issue of shares at a discount of Rs.5 lakhs, whichever is LESS, AND the company shall also be liable to refund all the monies received with interest at the rate of 12% per annum to all the persons to whom the shares were issued.

The earlier provision was penalty of not less than Rs.1 lakh extending upto Rs.5 lakhs for the company and jail term for every officer which may extend to 6 months or with fine of not less than Rs.1 lakh but which could go upto Rs.5 lakhs or with both.

Now to end the confusion, the jail term has been removed for the officer in default but the penal fines has been increased considerably. 

conversion of public company into private company.

MCA has vide an amendment through the Companies Act (Ordinance), 2018 specified that conversion of a public company into a private company will require the approval of the central government,  which means basically it will be the RD office which will manage that. Hitherto it was with the Tribunal.

This is part of the ease of doing business initiative of the government, wherein they first make a provision as inordinately draconian and then keep on relieving the pressure bit by bit to make it seem as a great initiative. This should never have gone to the tribunal considering the kind of pressure and load that our NCLT have ever since its inception, it has been loaded with all and sundry kinds of judicial work.

All pending applications, will, however be handled by the Tribunal only.

regd office

MCA has introduced a new sub-section (9) in section 12 of the companies act, 2013 wherein it gives powers to the Registrar to visit any registered office of a company where it believes that there is no business going on in that premises, and in case there is default, i.e. he finds that there is actually no business or operations going on in that premises, he can take action for striking off the name of the company from the records of MCA.

This is a very draconian provision in the sense that it gives vast powers to a government official to strike off the name of the company where he believes that the company is not doing any business or operations in its registered office.

Therefore, compliance for companies to show that business or operations are taking place in their registered offices - name plate of the company on the outside of the regd office, copy of certificate of incorporation and other statutory licenses to be displayed prominently on the walls of the R/O, keeping books of accounts, statutory registers, original documents, licences, share certificates, common seal, invoice books, bank documents (passbook, cheque book etc.) etc. to be kept at the R/O. All official documents like letter heads should carry the name, CIN, registered office address, GST no., telephone no., e-mail id, website (if any).  

change in financial year

The Companies Act, 2013 when it was introduced had mandated that all companies will have a uniform accounting year i.e. April to March each year. But the Act had given exemptions to those companies who were holding or subsidiary or associate company of a company incorporated outside India and which were required to have a different financial year than from April to March, then such companies can make an application to the Tribunal for change in their financial year accordingly.

Many companies fell under that ambit and one of my client companies also was a subsidiary of a foreign holding company. Accordingly the application was made to the CLB (when it existed) and even the CLB officials were unaware at that time that such matters are required to come to them. The application and hearing was a farce and the request was granted automatically and mechanically. So much for ease of doing business. The companies act, 2013 when it got notified was replete with such draconian provisions.

Now vide the Companies Act, ordinance, 2018 that application process had been taken away and given to the Regional Director. Of course with the CLB having been extinguished, all such applications would have been going to the NCLT, which is a sheer waste of their time and resources.

In my view, it should be no approval and all that stuff. Company should just inform that it is changing its financial year because of the reasons specified. So much for ease of doing business. 

certificate of commencement of business

MCA has vide its Companies (Amendment) Ordinance 2018 inserted a new section 10A after the existing section 10 wherein companies incorporated after this Ordinance has come into force i.e. from 2nd November, 2018 are required to file a certificate of commencement of business before it commences business or exercises borrowing powers. Which means that unless this certificate of commencement of business is filed with the ROC, it cannot start issuing invoices and receiving moneys.

The declaration has to be filed by a Director of the company within a period of 180 days from the date of incorporation to the effect that the subscribers to the memorandum have paid in their subscription monies. The declaration will also include a verification about the registered office of the company. I guess the form of verification of the registered office i.e. form INC-22 will be modified to that extent.

Which means that the company can open a bank account and the bank account can be used only for accepting the subscription monies from the subscribers to the memorandum, but no other receipts can be made into that account unless the certificate of commencement of business has been filed. This is an onerous requirement which ensures that only genuine people start companies with an intention of doing business. We have seen many shell companies being incorporated with no business in it for years and years.

This requirement of certificate of commencement of business was there when the Companies Act, 2013 was promulgated in 2013 but subsequently removed by the MCA under the banner of "ease of doing business". Wonder what prompted the Ministry to bring this draconian requirement back into the statute books.

The penalty for non compliance with this section is huge. Rs.50,000 for the company and Rs.1000 per day for every officer in default. Max amount of penalty Rs.100,000/-

Where no declaration has been filed the ROC has now powers to strike off the name of the company from its records.

Registration of satisfaction of charges

MCA has vide its notification dated 5th July, 2018 amended the Companies (Registration of Charges), Rules, 2014 wherein it has now allowed the satisfaction of charges to be filed within a period of 300 days from the date of satisfaction/ date of payment.

Hitherto, this period was 30 days from the date of satisfaction and if filed beyond that date, then company had to approach the Regional Director with an application for condonation of delay beyond 30 days, pay fine related to that in the RD order and then the satisfaction would take effect.

Of course, any filing beyond 30 days from the date of satisfaction would attract the additional filing fee as specified in the relevant Rules.

This is a good move by the government as an Ease of Doing Business. 

annual KYC by all Directors

MCA has vide its notification dated 5th July, 2018 amended the Companies (Appointment and Qualification of Directors) Rules, 2014 wherein it has added a Rule 11(2) which gives powers to the Central Government or Regional Director (Northern region) to deactivate the DIN of any individual who does not file the newly created form DIR-3-KYC within the stipulated time.

The de-activated DIN can be activated only after the form DIR-3-KYC is filed along with the requisite fee as prescribed.

A Rule 12A has been added which provides that every individual who has been allotted a DIN as on 31st March of a financial year shall submit form DIR-3-KYC within 30th April of the immediate next financial year.

In the interim for the first year, all those individuals who are allotted a DIN shall file DIR-3-KYC within 31st August, 2018

The form DIR-3-KYC is given in the amendment, but not released yet. On a cursory glance at the form, it requires personal mobile no. and personal e-mail id of the Director to be indicated. The documents required are proof of identity and proof of residence. Not sure whether any specific proof is required for the mobile no. or e-mail id. That will be know only when the form is released and we go through the help file of the form.

This amendment has been made effective from 10th July, 2018 so the form DIR-3-KYC will also be released on that date at the MCA portal. 

Companies Amendment Act 2018 -

MCA has vide its notification dated 13th June, 2018 allowed commencement of amendment to five sections of the Companies Act, 2013, vide Companies (Amendment) Act, 2018. These amendments come into effect from 13th June, 2018. These are:

section 90: this section has been substituted by a new section in toto. This deals with significant beneficial ownership for which separate rules have been notified also. This section is basically to find out who is the actual owner of shares on which beneficial interest lies not with the person whose name is entered in the register of members but with somebody else. This is important from the point of view of compliance thereto in respect of individuals or one or two individuals who are having beneficial interest in shares of the company.

section 93: Deletion of this section. This section required promoters to give details of shares held by them and top ten promoters and any change made therein to the extent of two percent or more shareholding to be reported to the Ministry in the prescribed format. This was a cumbersome section and rightly done away with.

section 94: this section deals with place of keeping and inspection of registers & records etc. There was a proviso which said that the annual returns may also be kept at a place other than the registered office in India in a city where more than 1/10th of the total number of members reside, if approved by a special resolution passed at a general meeting. There was a requirement that the ROC be given an advance copy of the proposed special resolution. This requirement of providing advance copy of the special resolution to the ROC has been done away with. 

Sub-Section (3) of section 94 provided that any member, debenture holder, other security holder or beneficial owner or any other person may (a) take extracts from any register or index or return without payment of fee, or (b) require a copy of such register or entries thereon or return on payment of such fees as may be prescribed.

Now a proviso has been added to this sub-section which says that - such particulars of the register or index or return as may be prescribed shall not be available for inspection under sub-section (2) or taking extracts or copies under this sub-section. 

Section 96- This section pertains to annual general meeting. Now a provision has been added in sub-section (2) that the annual general meeting of an unlisted company may be held at any place in India, provided consent is given in writing or by electronic mail by all the members in advance. 

So, this is is a liberalised move to allow private companies and unlisted public companies to hold annual general meeting at any place in India, provided consent is taken thereof in advance.

Section 216: This section pertains to investigation of ownership of the company. Pursuant to the enactment of the new section 90 regarding significant beneficial ownership, a clause has been added empowering central government to appoint one or more inspectors to investigate and report on matters relating to the company or persons "who have or had beneficial interest in shares of a company or who are or have been beneficial owners or significant beneficial owner of a company"

Companies (Management & Administration) Rules Amendment

MCA has vide its notification dated 13th June, 2018 amended the Companies (Management and Administration) Rules, 2014 as follows:

1) Rule 13 has been deleted - Rule 13 pertained to return of changes in the shareholding position of promoters and top 10 shareholders for listed companies. They were required to intimate changes of 2% or more in their shareholdings within 15 days of such change. A form MGT-10 was required to be filed for this purpose.

This has been done away with which is good

2) Rule 15(6) has been omitted. - Rule 15 pertains to preservation of register of members and annual return etc. Rule 15(6) specified that the special resolution which is proposed to be filed under section 94(1) should be filed one day before the general meeting of the company. Section 94(1) says that the registers and returns are to be kept at the registered office of the company. Proviso to section 94(1) says that such registers or returns can also be kept at any other city where more than 1/10th of the members reside, provided special resolution has been passed at a general meeting of the company.

So its a kind of a roundabout provision, which has been done away with. It should not have been in the statute books in the first place.

3) Explanation after Rule 18(3)(ix) has been omitted. - Rule 18 pertained to notice of meeting and how it can be sent via electronic route and the precautions to be taken thereunder and electronic records to be maintained. The explanation below Rule 18(3)(ix) said that "for the purpose of this rule, it is hereby declared that the extra ordinary general meeting shall be held in India". This is a totally redundant explanation which should not have been there in the first place.

So now extra-ordinary general meeting can be held anywhere in India. That was the provision in the 1956 Act, but somehow this explanation got mischievously embedded in the aforesaid Rules.

4) Amendment to Rule 22 - Rule 22 pertains to procedure to be followed for conducting business through postal ballot. Rule 22(16) gives a list of items for which business shall be transacted only by means of voting through postal ballot. Now a proviso has been added below this Rule 22(16) and this proviso now stipulates that these items of business which is mandatorily required to be transacted only through postal ballot may be transacted by e-voting also.

It is not clear whether companies should give both options i.e. postal ballot and e-voting or one to the exclusion of another.

I guess one more amendment will be required for that!! Sigh!!

Additional fee structure for MCA e-forms

The MCA has vide its notification dated 7th May, 2018 amended the Companies (Registration Offices and Fees) Rules, 2014 wherein w.e.f. 1st July, 2018 the additional fee structure would be Rs.100 per day instead of the slab wise additional fees that was applicable. In fact the slab wise additional fees will still be applicable in respect of the specified forms upto 30th June, 2018. Therefore if the event date of the form is before 30th June, 2018, then the slab wise additional fee structure will be applicable upto 30th June, 2018 and thereafter it will go up by Rs.100 per day. However, if the event date of the form is after 30th June, 2018 then additional fee structure will be straightaway Rs.100 per form. 

This additional fee structure is applicable only for the statutory annual e-forms like AOC-4 (annual audited accounts), MGT-7 (annual return of shareholders/ directors/ debts etc.), AOC-4 XBRL and AOC-4 (CFS).  It is not applicable for event based forms like MGT-14, PAS-3, CHG-1, CHG-4 etc. 

The additional fee structure is also applicable in respect of old version of the annual e-forms under the previous Companies Act, 1956 i.e. forms 23AC, 23ACA, 20B, 23AC (XBRL), 21A etc. 

So in case you have any annual e-forms still to be filed, the period upto June is the best time to file and upload the same as otherwise from 1st July, 2018 the additional fees will be Rs.100 per day. 

issue of share certificates

MCA has vide its notification dated 10th April, 2018 amended the Rule 5(3) of the Companies (Share Capital & Debentures) Rules, 2014. The said Rule pertains to issue of share certificates. Rule 5(3) pertains to the manner of issue of the share certificates.

The earlier Rule 5(3) mandated that the share certificates should be issued under the common seal of the company. Since the mandatory requirement of common seal was done away with, therefore the MCA has made the change in this sub-Rule as well. Now the Rule 5(3) reads as under:

⁶[(3) Every certificate shall specify the shares to which it relates and the amount paid-up thereon and shall be signed by two directors or by a director and the company secretary, wherever the company has appointed company secretary:

Provided that in case the company has a common seal it shall be affixed in the presence of persons required to sign the certificate.

Explanation. - For the purposes of this sub-rule, it is hereby clarified that,-  

(a) in case of an One Person Company, it shall be sufficient ifthe certificate is signed by a director and the company secretary or any other person authorised by the Board for the purpose. 

(b) a director shall be deemed to have signed the share certificate ifhis signature is printed thereon as facsimile signature by means of any machine, equipment or other mechanical means such as engraving in metal or lithography or digitally signed, but not by means of rubber stamp, provided that the director shall be personally responsible for permitting the affixation of his signature thus and the safe custody of any machine, equipment or other material used for the purpose.] 

The language used in the amended Rule 5(3) is much better than that in its erstwhile avatar. 

New system for reserving name

MCA has vide its notification dated 20th January, 2018 introduced a new system of name reservation for new companies as well as existing companies. It is called RUN (Reserve Unique Name) and it is available on the webspace as against a form which was hitherto the norm with MCA. So form INC-1 has been done away with.

RUN does not ask for too many details - just entity type, CIN, proposed name & comments. One needs to feed data into it and see how it works before commenting on the efficacy of the system.

Hitherto the form INC-1 used to run into a wall called the Central Reservation Centre or CRC. The CRC was known mostly for rejecting names rather than approving them and they had a funny, vague and ambiguous internal guidelines which they followed ridiculously. That is if the proposed name matched an existing entity's name by 50% it was automatically rejected. It is so silly and in absence of no further details as to how that system worked, it was a pain in the wrong place.

RUN does not require any digital signature to be uploaded, so hope it is not subject to misuse. People could just apply for several unique names and sit on it thereby preventing those names from being available for genuine entrepreneurs. I hope this is not the case. As i have said elsewhere unless and until we go through the new system, we will be unable to comment on its efficacy.

Also not aware if the RUN has some fees to be paid, which i am sure it has, then people could end up paying multiple times for different names because there is no resubmission process in the RUN system.

I hope RUN has some kind of appeal system in place otherwise what will happen is again some stupid internal guidelines will be followed much to the heartburn of genuine entrepreneurs.


In fact the CRC was so idiotic that they used to reject change name applications of existing companies without giving it any thought whatsoever.

Apparently the form INC-32(SPICe) has also been amended alongwith the digital MOA and AOA in forms INC-33 and INC-34 respectively. One has to look into these forms to find out what changes they have made.

Where the no. of subscribers to a new company are more than 7 or where the documents are being executed outside India, then the digital MOA & AOA is not to be used. Instead the duly signed MOA & AOA needs to be attached to the form INC-32.

DIN for a Director in an existing company

MCA has vide its notification dated 26th January, 2018 eased the requirement of a DIN (Director Identification Number) for appointment of a Director in an existing company. They have amended the Companies (Appointment & Qualification of Directors) Rules, 2014 to that extent.

Rule 9(1) has been amended as follows:

" (1) Every applicant, who intends to be appointed as director of an existing company shall make an application electronically in Form DIR-3, to the central Government for allotment of a Director Identification Number (DIN) along with such fees as provided under the companies (Registration offices and Fees) Rules, 2014.

Provided that in case of proposed directors not having approved DIN, the particulars of maximum three directors shall be mentioned in Form No.INC-32 (SPICe) and DIN may be allotted to maximum three proposed directors through Form INC-32 (SPICe)";

What this means is that if a person is proposed to be appointed as a Director of an existing company (as against a company to be incorporated), then he need not mandatorily have a DIN, which was a pre-existing condition. In that case, the company has to file form INC-32 (SPICe) and this form INC-32 (SPICe) can take maximum 3 DIN applications. The additional document to be attached to the form INC-32 (SPICe) is the board resolution approving the appointment of these new directors.

Now this form INC-32(SPICe) is an incorporation form, so why confuse it with the DIN forms, it is not clear at all. Why not enable form DIR-3 itself to take upto 3 applications and allow it to be uploaded that way with the board resolution attached. Perhaps they could have formed a DIR-3 (company) form as against a DIR-3 (individual) form. Confusion worse confounded.

Then again we come to Rule 9(3) which is pertaining to form DIR-3. The main sub rule 9(3)(a) has been left as it is i.e.

"The applicant shall download Form DIR-3 from the portal, fill in the required particulars sought ¹[therein, verify and sign the form] and after attaching copies of the following documents, scan and file the entire set of documents electronically-"

The heading of Rule 9 has been changed to 

"Application for allotment of Director rdentificataon Number before appointment in an existing company,,;"

Earlier it was 

"Application for Allotment of Director Identification Number"

Now under this revised heading of Rule 9, there are two forms prescribed i.e. INC-32 (SPICe) and form DIR-3 without clearly specifying when both of these forms are to be used. 

It is not clear now how many forms are to be used. DIR-3 by the Director, INC 32(SPICe) by the company and thereafter another form DIR-12 for appointment of Directors. 

MCA is clearly losing its way, it is a badly drafted amendment with the left hand not knowing what the right hand is doing.