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Private/Public Company Registrations

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Private Company (or Private Limited Company)

A private company cannot be owned by the public; it restricts the number of members, the right to transfer its shares and prohibits any invitation to the public to subscribe for any shares or debentures of the company.

(In UK) A private company is a separate legal entity with a suitable company name, an address, at least one director, at least one shareholder, and memorandum of association and article of association.

(In India) A private company is a separate legal entity with a suitable company name, an address, at least 2 members and at most 200 members, and at least two directors with one being an Indian resident.

Steps to register Private Limited Company

It takes only 4 steps to register a private limited company within a time span of 15 to 18 days. The same can be classified in following main heads:

Step 1: Acquire DSC for Directors and Subscriber:

The first and foremost step to register a private limited company is to acquire the DSC of the Directors and Subscribers to MOA. DSC stands for Digital Signature Certificate. Any e-form is filed with the Ministry after affixing the DSC of the Authorized Signatory for Company Incorporation. Also, it is required for the application of DIN of the directors. Further, DSC of the subscriber is needed to file MOA and AOA.

Step 2: Obtain DIN for Directors

DIN is an abbreviation of the term Director Identification Number. Under this company registration step, the DIN allotment is carried out by the Ministry to the Individual for acting as Director in a company. DIN is unique such as PAN Card to any person and which is applied and allotted once in the lifetime.

Step 3: Name approval Application

The next step in company registration involves making an application for reservation of name for the proposed company. The application is to be made in Form INC-1, where one can apply for a maximum of 6 names in order of preference. One shall keep in mind that the names applied are not identical or nearly resembling with any existing Company or LLP or Registered Trademark. Once the name applied is approved, it is reserved for the applicant for a period of 60 days, in span of which one has to apply for the Incorporation of Company, non-compliance of which leads to withdrawal of the name granted by the Ministry.

Step 4: Application for Certificate of Incorporation

Formulation of MOA and AOA

MOA and AOA stands for Memorandum of Association and Articles of Association, respectively. These are two most important documents for any company and marks the last step in the process of registering a Company.

A MOA of a company states the scope of operations of the company, whereas AOA states how the company will be carrying the operations as per the laid Act. In case of a Private Limited company, the Articles shall mandatory consist the following three clauses in addition to general clauses:

Once the name is reserved for the proposed company, one shall proceed for making Application of Certificate of Incorporation in SPICe form accompanied withSPICe_MOA and SPICe_AOA. The application is submitted by paying the requisite Stamp Duty as applicable in case of concerned state on the portal. Once the application is submitted, form for application of PAN and TAN of the company is generated online, which shall be duly submitted after affixing the DSC with MCA.

For submitting this application, one shall collect following documents first:

Utility Bill and NOC from the owner for the Registered Office address of the Company;
Rental Agreement with the owner of registered office, if premises is rented;
Consent to act as a Director of the company in form DIR – 2;
Affidavit and declaration by first subscriber(s) and director(s) in form INC – 9 (duly franked and notarized);
Certified True copy of the self-attested Identity proof of the first subscriber(s) and director(s).

After due verification of the application and documents provided, the concerned RoC may grant the Certificate of Incorporation (COI). It is a conclusive proof of existence of the company, wherein the date of Incorporation, Company Identification Number (CIN) and Permanent Account Number (PAN) is mentioned with the sign and seal of the Registrar.

Once the Certificate of Incorporation is granted, the company may commence the Business Activity as the Incorporation procedure is completed.

Public Company (or Public Limited Company)

A public company is a corporation whose ownership is open to the public. In other words, anyone can buy the shares of a public company. There are no restrictions to the number of members of a public company or to the transferability of shares. However, there are some other restrictions:

(In UK) A public limited company should have at least 2 shareholders and 2 directors, have allotted shares to the total value of at least £50,000, be registered with company house, and have a qualified company secretary.
(In India) A public company should have at least 7 members and 3 directors, and issue a prospectus or file a statement in lieu of prospectus with the Registrar before allotting shares.

INCORPORATION /REGISTRATION OF PUBLIC COMPANY

Public Limited Company is a form of company which offers its shares to the general public. It gives limited liability to its owners and shareholders. At least seven shareholders are required to incorporate this form of company. It should at least have three directors. This form of company is very common in countries like the United Kingdom. It is a separate legal entity and has no maximum limit to the number of shareholders it can have. They are thus huge and can raise high share capital. There is a defined procedure when it comes to an incorporation of the company, according to the Companies Act. A certificate of commencement of business is required before starting the company. Certain documents are required for incorporation of a Public Limited Company. Requirement of minimum number of directors and shareholders:

There is a minimum requirement of directors and shareholders, as mentioned below:-

Statutory compliances

A wholly owned subsidiary, either public or private limited, will have to comply with all the laws, rules and regulations as applicable, including but not limited to the Companies Act, 2013, Foreign Exchange Management Act, 1999, Shops and Establishment Act, Income Tax Act, etc., failing to which may result in heavy penalties. This will result in increase in the running expenses of the Indian subsidiary as professional guidance shall be mandatorily required to stay compliant with all the applicable laws.

PROCEDURE FOR INCORPORATION OF PUBLIC COMPANY

Approving Authority: Registrar of Companies (RoC) and Reserve Bank of India (RBI)

Obtaining approval from FIPB (Foreign Investment Promotion Board), if required: If the activities of the Indian wholly owned subsidiary fall under Government approval route, then the approval from FIPB has to be obtained.
Obtaining DSC (Digital Signature Certificate) of proposed directors: Digital Signature Certificates (DSC) are the digital equivalent (that is electronic format) of physical or paper certificates. DSC is required to sign any electronic document like e-forms. DSC can be obtained from any licensed Certifying Authority.
DIN (Director Identification Number) of proposed directors: It is mandatory for proposed directors to obtain DIN (Director Identification Number) up to 3 under the Companies Act, 2013. through SPICE form. In case of existing companies DIN can be applied electronically in Form DIR- 3 on the website of Ministry of Corporate Affairs (MCA), along with required documents and filing fee.
Applying for availability of name: The foremost step in formation of a company is to apply for availability of name of the proposed company. One must comply with the naming guidelines in this regard. Form RUN has to be filed with MCA for reservation of name of the proposed company.
Drafting of Memorandum of Association (MoA) and Articles of Association (AoA): Memorandum of Association (MoA)is the charter of the company and it sets out its scope of activities. Articles of Association (AoA), on the other hand, regulate the internal working of the company. Both these documents are very crucial to the company and hence, are drafted with utmost caution.
Filing incorporation documents Once the name is approved from the Registrar of Companies, documents for incorporation have to be filed in Form -32
Filing of documents for the registered office of the company (within 30 days of incorporation): The company must have a place of business as its registered office. Form INC-22 has to be filed along with the required documents, within 30 days of the date of incorporation of the company.
Certificate of Commencement of Business: A company, after its incorporation, could commence its business only when the subscribed amount has been deposited by the subscribers in the bank account of the company.
A declaration from the director that all the subscribers of the company had paid the value of shares to be taken by them and the paid-up share capital of the company is not less than five lakh rupees in Form INC-21 was required to be filed within 180 days of its incorporation.

In a recent amendment, Government has done away with the above-mentioned requirement of obtaining Certificate of Commencement of Business (effective from end of May, 2015 i.e. 29-05-2015