The article is written by Shreyak Patnaik, a third-year student studying in Symbiosis Law School, Hyderabad. This article deals with the procedure of shifting a registered office of a company from one state to another.
Table of Contents
If you’re a company registered under the Companies Act, 1956 (which you should be in order to get all the legal benefits of a company under the laws of this country), then you inevitably have a registered office. Its address is in all your letterheads, your emails, and it’s responsible for receiving and acknowledging all the communication that is directed to your company. Legally speaking, it is the face of your company. Now, at the start of your business, you might have registered an office in a certain state since, at the start, the scope of business was limited, you had no problem having a registered company at the place where you are currently registered. But, the times have changed, the business has expanded, you’re a public company now. You need to change your registered office.
There’s a very stringent procedure, set in stone, a stone by the name of the Companies Act, 1956.
This article will basically try to simplify the legal jargon of the act and tell you essentially all the things you have to do to change the registered office of your company to another state.
What is Required Before Approaching the Authority?
First and foremost, it will be extremely beneficial for you to have an account at the official site of the ministry of corporate affairs. Why will it be beneficial?
This being the 21st century, you do not need to physically go to the relevant authority’s offices with all your documents. You can just upload the required documents onto the site. An advantage of that will be everything of importance will be automatically uploaded and all the extra work you might have to do will automatically be done. So for example, you don’t have to attach a copy of the acknowledgement of payment for submitting the form, the moment you upload the e-form, you will automatically be directed to the payment portal. You also don’t have to go to the registrar’s office to collect your fresh certificate of incorporation as it will be automatically uploaded to your workspace in your account.
Second, it is mandated by law that the decision to change the place of registered office outside the limits of the current state must be done with a special resolution of the company. So before starting the official process of seeking the government’s approval, your company must have convened a general meeting, accepted the resolution of shifting the registered office and must have filed the resolution with the registrar at least a month prior to approaching the Central Government.
Next, you need a list of all creditors and debenture holders of the company along with their names, address and the claims they have from the company. The list needs to be updated and has to be signed by the company secretary and no less than two directors (one of whom is a Managing Director, if you have any), stating that the list has the names of all creditors and debenture holders and the amount owed to each of them are accurate to the best of their knowledge. This ensures that anyone who wants to leave the company can raise an objection and try to reach a middle ground with the company, or be allowed to leave the company with whatever he is entitled to.
These are just the documents you have to prepare from your side before you approach the authority, the complete list of documents required will be mentioned below in the procedure of shifting the registered office.
Who Administers the Procedure for Shifting of the Registered Office?
The authorities involved in this entire process are the Central Government. The registrar of the state where you want to shift your office and the registrar of the state you want to shift your office from.
Central Government/Regional Directors
Your communication with the Central Government will be through the Regional Directors, they have the delegated powers of the Central Government in these situations and the approval of the Central Government which you require is essentially their approval. There are seven regional directors in the country, the offices of all regional directors are mentioned here, remember you’d be addressing your forms to the regional director of the region your current registered office is situated at.
Registrar of Companies
As mentioned before, you are to concern yourself with two registrars of companies, one being the registrar of the state you are leaving and one being the registrar of the state to which your office is shifting. The registrar of the state you are shifting to will issue you a fresh certificate of incorporation with the amendments to the address of your newly shifted registered company.
The addresses of all registrars of all states are mentioned here.
Can the procedure be done without representation?
No, some kind of representation will be necessary. The importance of representation can’t be understated since it is the administrative authority with whom you’d be dealing with.
You would either need a board resolution, a vakalatnama or give the power of attorney to one agent (It essentially means they’d be representing you) and upload the relevant document in one of the forms. So might as well get yourself a lawyer who’ll understand what to do.
But you do have the option of just going ahead with a board resolution.
Will a private company and public company require different procedures?
No, Private companies, Public companies and one-man companies are all governed by the provisions of the Companies Act and, therefore, all are subject to the same procedure mentioned in the Act. What might be different is the nuances of each procedure, for example, a listed public company will have much more shareholders and debenture holders to list compared to a private company. A private company with more than two members will require a lot more votes to pass the special resolution compared to a one-man company with just a single member. But all three require the Central Government’s approval and have to send notifications to both the registrars of companies involved.
What are the Steps to Complete the Entire Shifting of the Registered Office?
Before you start anything, be sure that your office isn’t facing any pending investigation or inquiry regarding any matter before any court of law; the shifting of the registered office can be denied on the ground of any pending investigation of the company.
Before you start any of the processes required to initiate the process of shifting, you must first have a successful special resolution passed from your company. It is mandatory for a notice to be issued to every member either in physical or electronic form. So you must have a copy of the notice with all the statements (as required under section 102 of the Act) explaining the resolution to be a special resolution and with the relevant statements mentioning that the subject of shifting of the registered office is to be raised in the meeting along with you; you must also have a copy of the minutes of the meeting called wherein the question of shifting of the office is raised. The number of the members present and the shares owned by each member must be mentioned in the minutes. It must also be mentioned that the number of members who vote in favour of the resolution and the number of members who vote against the resolution. For a special resolution to pass, the number of voters voting for the resolution must be three times more than the number of voters voting against the resolution. Once passed, it must also be formalised by filing the resolution with the registrar of companies of the state your registered office is currently in.
You require an MGT-14 Form to file the resolution at the registrar. This form must be filled and filed within 30 days of passing the special resolution. Along with the form you are also required to upload a copy of the altered memorandum of association and an altered article of association. This is the first step which formalises your company’s resolute to alter the location of your registered office.
(Link for the directory containing all the relevant forms, is provided at the end of the article)
The next step after this is to:
- a) advertise your company’s intention to change the location of your registered office.
- b) serve, through registered post, with acknowledgement due, a notice to each creditor and debenture holder regarding the intention of the company to change the location of the registered office. They must also be informed that in case of any objection, they must send their grounds of opposition along with their interest in the company to the Regional Director. They must also send a copy of it to the company. It must also be stated to them to send their objections within 21 days of publication of that notice.
The above-mentioned procedures must be completed at least 14 days before the date of hearing by the Regional Director/Central Government. But do realise, the Central Government has 60 days to dispose of your application and therefore they can conduct the hearing at any point so it’d be a good thumb rule to be done with the first two steps 15 days before you file your application.
The advertisement must be published once in English and once in the principal language of the district in which the registered office exists. The advertisement must be in the format shown here.
Once you’ve done the previous steps, you must now file an application to the regional director to approve and allow your company to shift its registered office to another state.
The application for Central Government’s approval regarding the shift is in Form no. INC-23. You would require to upload other documents along with it. Those documents are:
- A copy of the memorandum and articles of association with the proposed amendments to the location of registered office.
- A copy of the notice sent to the members, convening the general meeting in which the topic of change of location of the registered office was raised.
- A copy of the minutes of the meeting in which the resolution authorizing the alteration was passed. Details of the number of voters, voters voting for the alteration and voters voting against the alteration must be mentioned in the minutes (It must also be filled in the form).
- A list of creditors and debenture holders entitled to object to the application.
- An affidavit verifying the list. The list must be signed by a Company Secretary (If there is any) and two directors (One of whom must be a Managing Director, if any) stating that the list of creditors and debenture holders is complete and all the amounts to which they are entitled to be accurate to the best of their knowledge.
- The document relating to the payment of application fee (This wouldn’t be needed if you upload your forms online since the moment you upload your e-form, the portal will automatically take you to the payment portal and will be recorded on the site).
- A copy of the Board Resolution, or the Power of Attorney or an Executed Vakalatnama as the case may be.
Some things to keep in mind while filing INC-23
- If any of the objections by the creditors and debenture holder are received by the company, it shall serve a copy thereof to the Central Government. You can re-submit your form by attaching all the objection you received from it.
- Your MGT-14 which is the form through which you file your special resolution to the registrar will be required in this form so make sure you have filed your form at least a month prior to you filing the INC-23.
- The Central Government legally can take at most 60 days to come back to you with a confirmation or rejection.
- You must also have an affidavit signed by the directors stating that no employee will be retrenched as a result of this shift in the location of the office. This affidavit will need to be uploaded in the form too.
- As a company, you have an identifier number, your CIN, you would need that number as its mandatory to fill it in the form. Once you fill in your CIN number, every other particular about the company can be filled from the directory itself. Just chose the pre-fill option once you type in your CIN.
- Along with the application, you also need a signed affidavit, verifying the application as well.
- Whoever is digitally signing the form must be correctly designated in the form, if its a director then the DIN must be mentioned and if its a company secretary then the membership number must be mentioned.
Once you have submitted the form, you would be directed to the payment portal where you’ll pay the required fee. The Central Government will peruse your submission and wait for any objection that might be raised. If no objections are raised, the director might directly give the order of approval without holding a hearing. But in case any objections are raised, a hearing will be held where both the parties will put forth their arguments and the director will try to bring the objecting party to some sort of agreement. If the party doesn’t agree, then the claims they are entitled will be paid to them and they will be allowed to leave the company.
Within 60 days (at the very most) the Central Government will give an order approving (if all requirements are met, and there is no pending investigation against the company) the shifting of the registered office.
Once the order is received, the company must now file a copy of the order of approval by the director in both the registrars of company, i.e the registrar of the state the office was originally situated at and the registrar of the state the registered office is shifting to.
The form which has to be filled in that case is Form No: INC-28. The only mandatory upload in this form is a copy of the order by the Central Government, approving the shifting of the company. The form must be filed with both the registrars, one of the registrars will record you leaving and the other registrar will issue you your fresh certificate of incorporation with the amended location of the registered company.
Things to keep in mind while filing INC-28
- Have your CIN Number ready.
- The one passing the order in this situation would be the Central Government (You’d need to fill that).
- You need to file the form within 30 days of receiving the order from the Central Government (You will need to fill that in the form too.)
- The section under which order would be passed in this case would be Section 13(7) of The Companies Act, 2013, (You will need to select the section from a drop-down box)
- Have the SRN of your INC-23 with you (It’s not necessary per se, but to be on the safe side.)
After filing the copy of the order at both the ROCs, you must also notify the registrar of the state you are moving through about the change of your registered office. For that purpose, you must file the form INC-22. So this form acts as a notification to the registrar regarding the change of your office.
Relevant documents for INC-22
- If the premise is purchased, then you need to upload a copy of the proof of address. It can be a lease, or conveyance or a rent agreement.
- You need to also upload a copy of the utility bills. The bills must not be older than two months.
- If the property is owned by an entity or person other than the company, then a proof of permission granted to the company for the usage of the land must also be uploaded.
And that’s it! You’re done with the administrative process. Do remember to change the address in all your emails, letterheads, notices, business letters and official publications. That may not be administrative, but it sure is legally mandatory pursuant to section 12 of the Companies Act, 2013.
The Registrar of the state to whom you have shifted your office will upload your fresh certificate of incorporation on the portal itself.
There is one single official directory where you can find all the forms mentioned in the article. Click here to visit the directory. Once in the directory, just press ctrl+F and search the form (For example: to find INC-23, just search “INC-23”, in the search box which will open up) and download it.
You need to have Adobe Acrobat 11 or later and Java version 8 or later downloaded to be able to fill in the e-forms and successfully upload them on the site.
You can get adobe here
You can get Java here
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.