Home PROCESS OF SHIFTING OF REGISTERED OFFICE FROM ONE STATE TO OTHER

PROCESS OF SHIFTING OF REGISTERED OFFICE FROM ONE STATE TO OTHER

by CS Divesh Goyal

Meaning of Registered Office:

A registered office is an official address of a company to which all the official letters, notices, and reminders will be sent by any person, any government or non-government or regulatory body. In terms of Section 7 of the Companies Act, 2013 (the “Act”), all the registered companies are legally required to have a registered office address in India from the date of the commencement of the business or within fifteen days (As per Companies Amendment Act, 2017 period  of 15 days shall be substituted with 30 days) from the date of the incorporation whichever is earlier, However, under the incorporation process effective as of date, the proposed company is required to intimate the address of its proposed registered office at the time of incorporation itself.

Usually, a registered office is situated where most of the stakeholders reside. The only reason being is for their convenience. However, sometimes it happens so that the registered office needs to be shifted to another place for the better management of the company. The shifting can be within the local limits of the same city, outside the local limits within the same city, from the jurisdiction of the present ROC to the jurisdiction of another ROC (in Maharashtra and Tamilnadu1), and sometimes, from one state to another.

Out of State Shifting of the Registered Office under the Companies Act, 2013 Provisions relating to shifting of the registered office from one state to another are contained in Section 13(4) of the Companies Act, 2013 which are detailed in  rule 30 of The Companies (Incorporating) Rules, 2014. In the present article, this procedure has been given in a step by step manner for easy understanding of the readers.

BELOW WE HAVE DISCUSSED THE DETAILED PROCEDURE FOR SHIFTING OF REGISTERED OFFICE OF A COMPANY STEP BY STEP:

  1. Call and Hold a Board Meeting: 
  • To consider the proposal for shifting of the registered office.
  • Fix up the date, time, and place of the General Meeting.
  • Approve the notice of Extraordinary General Meeting and calling of the General Meeting.
  • Authorize the CS or Director to move an application before RD to alter Clause II of the Memorandum of Association within whose jurisdiction the registered office of the company (before change) is situated.
  • The Board shall authorize the Director and the Secretary severally to see that the consent of the Creditor and debenture holders if any etc. is obtained or that sufficient provisions is made for the discharge of their debts or adequate security is made section 13(5).
  • Authorise the CS or Director to move an application before CG for the approval .

2. Send Notice of general meeting to all the members along with the Explanatory Statement (Section-102), Proxy Form, Route Map and Attendance Slip.

3. Hold the General Meeting and Pass the Special Resolution approving the shifting subject to the approval of the RD.

4. Prepare the Minutes of Extraordinary General meeting/ General Meeting.

5. After taking the approval of the members, file a certified copy of the special resolution along with the explanatory statement and altered copy of MOA within 30 days of passing of the Special Resolution in the form MGT-14 (Filing of Resolution and agreement to the registrar under section 117) with the ROC.

Attachments: (Attachments of e-form MGT-14) 

  • Copy(s) of the Special Resolution(s) along with the copy of the explanatory statement under section 102.
  • Altered Memorandum of Association [MOA].
  • Minutes of the EGM.
  • Shorter Notice consent if any.

6. Publication of Notice in News Paper:

Publish a notice in Form No.INC.26, in the  vernacular newspaper in the principal vernacular language in the district and in English language in an English newspaper with wide circulation in the state in which the registered office of the company is situated not older than 30 days from filing of application (INC-23) with Regional Director. (Rule 5)

7. Prepare a list of CREDITORS and DEBENTURE HOLDERS and intimate them accordingly.

  • The list is required to be filed with the application.
  • The list should be duly verified by an affidavit.
  • List should be verified by the Statutory Auditor of the Company.
  • The list should not precede the date of filing of petition by more than one month (List Should not be older than one month from filing of the petition). (Rule 2)

List Contain the Information: 

  • 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:

AFFIDAVIT: 

As per Rule 30 Sub Rule (2) of The Companies (Incorporation) Rules, 2014 (Affidavit should be signed by the Company Secretary of the Company, if any and not less than two directors of the Company, one of whom shall be managing Director, where there is one, to the effect that they have made a full equity 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 the 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)

8. Prepare List of Employees:

The Application on 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.

9. Prepare List of Application:Company will prepare the application for shifting of the Registered Office along with the required documents.

10. Prepare an Application and all the relevant annexure to be filed with the Regional Director for seeking an approval for the shifting of the registered office from one state to another.

11. Send a copy of the application with complete annexure to the Chief Secretary of the State where the registered office is situated at the time of filing the application and obtain acknowledgment for sending the notice.

12. The Petition along with the enclosure should be Serially Numbered and scanned copy of the petition is filed in the Form GNL-2 with the Registrar of Companies.

13. The Original Application U/s 13(4) along with all the Necessary Annexure for seeking an approval of the [1]Central Government (Regional Director) for the shifting of the Registered office from one State to another shall be filed in Form- INC-23  along with the fee and the following documents:-

  1. A copy of the Memorandum And Articles Of Association;
  2. Certified True Copy of the Board Resolution.
  3. A copy of the Notice Convening the General Meeting along with the relevant Explanatory Statement;
  4. A copy of the Special Resolution sanctioning the alteration by the members of the company; (if possible supported with Attendance sheet)
  5. 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 favor or against the resolution;
  6. An Affidavit Verifying the application (On Stamp Paper duly notarized)
  7. The List of Creditors and Debenture Holders entitled to object to the application;
  8. An Affidavit Verifying the List of the Creditors; (On Stamp Paper duly notarized)
  9. The document relating to the payment of the application fee;
  10. Copy of News Paper Advertisement.
  11. Affidavit by Director verifying the non-retrenchment of employees
  12. Affidavit verifying the Publication of News Paper Notice.
  13. Memorandum of Appearance and Board resolution authorizing company secretary / Chartered Accountant or advocate
  14. A copy of the Board Resolution Or Power Of Attorney or the executed Vakalatnama, as the case may be (in the favour of Professional)
  15. An Affidavit verifying the list of Employees. (On Stamp Paper duly notarized)
  16. Copy of the latest audited balance sheet and profit and loss account of the company along with the auditors’ and directors’ report.
  17. Affidavit proving the dispatch and service of notice to the Chief Secretary.
  18. Board resolution authorizing the director to submit the petition.
  19. Form MGT-14 along with the paid challan.
  • Further, the Hard copy of the petition is to be submitted with the Concerned Regional Director Office.

  AFFIDAVIT: An affidavit verifying the petition on a non judicial stamp paper, which is notarized, shall be attached. Five affidavits are to be given along with the petition.

  1. One affidavit is verifying the petition;
  2. One affidavit is verifying the publication of the notice
  • One affidavit verifying the creditors.’
  1. One affidavit verifying the Non retrenchment of Employee
  2. One Affidavit from the Director in terms of rules
  3. One Affidavit from the Director that there is no enquiry, inspection, investigation and prosecution is pending against the Company

Where the Third, Forth & Fifth affidavit shall be given by two directors of the company.

  • Petition should not be prepared on the letter head.

14. After checking of the application with the Annexures, the hearing will take place at the Regional Director office and it should be represented by the company or the practicing professional or the advocate. The creditors, if any and the representatives of the company may also represent and are heard before making any order.

15. Power to Inspect: A duly authenticated copy of the list of the 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 the business, inspect and take extracts of the same on the payment of a sum not exceeding ten rupees per page to the company.

 16. Objection if Any Received:

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 .If objection is received, Central Government will, before passing any order, ensure that the company has either obtained consent of the person who had objected to the alteration or his debt or claim has been discharged or has determined, or has been secured to the satisfaction of the Central Government.

(i) the Central Government shall hold a hearing or hearings, as required and direct the company to file an affidavit to record the consensus reached at the hearing, upon executing which, the Central Government shall pass an order approving the shifting, within sixty days of filing the application.

(ii) where no consensus is reached at the hearings the company shall file an affidavit specifying the manner in which objection is to be resolved within a definite time frame, duly reserving the original jurisdiction to the objector for pursuing its legal remedies, even after the registered office is shifted, upon execution of which the Central Government shall pass an order confirming or rejecting the alteration within sixty days of the filing of application.

 17. Where No Objection Is Received:

If no objection is received from anybody, Central Government (Regional Director) will confirm the change of registered office on the date of hearing and put the application for necessary orders.

Where no objection has been received from any person in response to the advertisement or notice or otherwise, the application may be put up for orders without hearing and the order either approving or rejecting the application shall be passed within fifteen days of the receipt of the application.

18. The Regional Director will 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:

19. Obtain certified copies of the order confirming the shifting of registered office from one state to another, passed by the Central Government,

19) File e-form INC-28 with the ROC within 30 days of the confirmation of shifting by Central Government along with the following Documents:

  1. Confirmation given by the Central Government for change of registered office.

20) File e-form INC-22 with ROC within 30 days of the confirmation of shifting by the Central Government along with the following Documents:

  1. Registered document of the title of the premises of the registered office in the name of the company; or (b) Notarized copy of lease / rent agreement in the name of the company along with a copy of rent paid receipt not older than one month; 
  2. Authorization from the owner or authorized occupant of the premises along with the proof of the Ownership or occupancy authorization, to use the premises by the company as its registered office.
  3. Document of connection of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner/document as the case may be which is not older than 2 months.
  4.  The list of all other companies with their CIN, having the same unit/tenement/premises as their registered office address.
  5. NOC from the owner of premises.

If the documents are in order, Registrars of both states will approve the forms and registered office change will be updated in the register of Registrar and new Certificate of Incorporation will be issued by the Registrar of the State within 30 days, where the company’s registered office is going to be shifted.

STEPS AFTER OBTAINING NEW CERTIFICATE FROM ROC:

  • Make alteration in the MOA with respect to the state in every copy of the Memorandum.
  • 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.
  • Necessary changes are required to be made in the letter heads, books, records etc. of the company. The necessary changes are required to be made in PAN. TAN and ST2 etc and inform to all the Government departments, banks, customers and others wherever required.

Tail Piece: Provided that the shifting of registered office shall not be allowed if any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the company under the Act.

* Proof of Registered Office Includes:

  • Conveyance
  • Lease Deed
  • Rent Agreement (along with rent receipt not older than 1 (one) month.

* Utility Bill: Depicting the address of the premises in the name of the owner and documents

Should note be older than 2 (Two) months.

  • Telephone Bill
  • Gas Bill
  • Electricity Bill etc

VERIFICATION OF REGISTERED OFFICE:

(Rule- 25 of the Companies (Incorporation) Rules, 2014

  1. If the Premises is on the name of company: The registered document of the title of the premises of the registered office “in the name of the company”.
  2. If the Premises is not on the name of company, not on rent and not on Lease: Than Authorization from the owner of the premises + along with the proof of ownership and NOC in the favour of the Company for the use of the premises by the company as its registered office.
  3. If premises is taken on Lease: The Notarized Copy of Lease deed in the name of the company along with a copy of rent paid receipt not older than one month.
  4. If premises taken on Rent: The Notarized Copy of the Rent Agreement in the name of the company along with a copy of rent paid receipt not older than one month.

 

Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.

 

[1] Power of Central Government has been delegated to Regional Director.

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