On receipt of communication from the Registrar of Companies intimating that the name applied for is available, get the Memorandum and Articles of Association of the company drafted and printed. The Memorandum and Articles of Association should be prepared in accordance with Section 581F and 581G respectively of the Act
Section 581C of the Act lays down the provision relating to formation and registration of a producer company. Any ten or more individuals, each of them being a producer, or any two or more producer institutions or a combination of ten or more individuals and producer institutions, desirous of forming a producer company having its objects, specified in Section 581B and otherwise complying with the requirements of this Part and the provisions of this Act in respect of registration, may form an incorporated company as Producer Company under this Act.
KMI-6 1 REGISTRATION OF A PRODUCER COMPANY A step-wise basic information for the registration of a ‘Producer Company’ is described as under: Step 1: Digital Signature Certificate (DSC)1: The Information Technology Act, 2000 has the provision of use of Digital Signatures on the documents in order to ensure the security and authenticity of the documents filed electronically. It is now mandatory to have Digital Signature of minimum one Director or Chairman prior to entering the formal registration process. This is the only secure and authentic way that a document can be submitted electronically. As such, all filings done by the companies are required to be filed with the use of Digital Signatures. Thus, it is necessary for a company to authorize a person’s signature who will sign the documents. The prescribed application form for DSC is available at the website of Ministry of Corporate Affairs (henceforth referred to as website of MCA)2. After filling the required information, the form has to be submitted online to the ‘Certification Agencies3’. The DSCs are typically issued with one to two year validity. These are renewable on expiry of the period of initial issue. The official fee for issuance of DSC is Rs.1800/-. In addition, the Certification Agency charges a service fee which varies from agency to agency. Step 2: Director Identification Number (DIN) The DIN number can be obtained online only from the company affairs cell at Noida, UP without any fees by providing identification proof number (Only PAN Card, Voter Identity card, passport or driving license number is accepted). The prescribed form is available in the website of MCA and the application can be done online. Step 3: Naming of a Producer Company4 A Producer Company should be named using the following suffix “…..Producer Company Limited” appropriately indicating its status of Producer Company. The word “private” is not used in the name and the absence of which does not indicate that the company is a “public”. The procedures for selecting and applying for the availability of name for a Producer Company are: Select, in order of preference, at least one suitable name up to a maximum of five names, indicative of the main objects of the company. Ensure that the name does not resemble the name of any other already registered company and also does not violate the provisions of emblems and names (Prevention of Improper Use Act, 1950) by availing the services of checking name availability on the portal ( http://www.mca.gov.in). Apply to the concerned Registrar of Companies to ascertain the availability of name in e-Form 1(A)5 by logging in to the portal (http://www.mca.gov.in). A fee of Rs. 500/-6 1 From September 16, 2006, Ministry of MCA has initiated an electronic mode transaction for all the process of statutory filings under the Companies Act, 1956. 2 http://www.mca.gov.in 3 Certification Agencies are appointed by the office of the Controller of Certification Agencies (CCA) under the provisions of IT Act, 2000. There are a total of seven Certification Agencies authorised by the CCA to issue the Digital Signature Certificates (DSCs). The details of these Certification Agencies are available on the portal of the Ministry of Corporate Affairs www.mca.gov.in 4 As per the Companies (Amendment) Act, 2002, Section No. 581B KMI-6 2 has to be paid alongside and the digital signature of the applicant proposing the company has to be attached in the form. If all the proposed five names are not available, the applicant will be intimated by Registrar of Companies (RoC) and subsequently the applicant has to apply for a fresh name on the same application. Moreover, there is further scope of changing the PC’s name, if required. However it is not easy to do it frequently. As per the company Act 1956 section 21, an application to RoC with a supporting of a resolutions passed by 2/3 majority of BoD and 1/3 of General Body and fees of Rs.500 is required to be submitted along with new proposed name and 4 other alternatives in order of preference. Step 4: Memorandum & Articles of Association7 After ascertaining the name of the producer company, a memorandum and articles of association have to be prepared. Memorandum and Articles of Association should be printed (preferably a computer print out - printed on both side of the paper) Get the Memorandum and Articles of Association duly stamped8. Get the Memorandum and Articles of Association subscribed/signed by the requisite subscribers/promoters in his/her own hand, his/her father's name, occupation, address and the number of shares subscribed for. Ensure that the Memorandum and Article is dated on a date after the date of stamping. Step 5: Documents to be submitted to the RoC for the Incorporation of Producer Company9 File the following documents along with the fees payable10 with the Registrar of Companies of the state, where the Registered Office of the company is to be situated: Copy of the letter of Registrar of Companies confirming the availability of name for formation of the company should be made; Memorandum and Articles of Association duly stamped and signed; Form 18 regarding situation (full address) of Registered Office11 Form 32 (in duplicate) regarding particulars of directors12 Form 1 (on a stamp paper) declaring compliance of all and incidental matters regarding formation of companies13 Form 29 – consent of the director An affidavit has to be submitted if the Memorandum of Association is submitted in Hindi by subscribers, claiming the understanding of same. Power of Attorney. 5 Pursuant to Section 20 & 21 of the Companies Act 1956 6 Fees should be deposited in the regional bank authorised by the MCA. 7 A small write-up on Memorandum of Association and Articles is given in Appendix 2 8 Stamping should be done in accordance with the requirement of the Indian Stamp Act, 1899 and the applicable rate depending on the State where the Registered Office of the company is to be situated. 9 The applicant can apply for registration of the new company within six months of name approval 10 The amount of registration fees to be paid will depend upon t he authorised share capital kept by the company in the Article of Association. 11 As per the Companies (Amendment) Act, 2002, Section No. 146. 12 As per the Companies (Amendment) Act, 2002, Section No. 303 13 As per the Companies (Amendment) Act, 2002, Section No. 33 (2) KMI-6 3 Please note that all the information and forms are available on the website of MCA (http://www.mca.gov.in) and that the forms can be directly accessed and filled in on-line. Step 6: Certificate of Incorporation The Registrar of the Companies, on being satisfied that all the documents14 for the incorporation of a company is submitted, s/he is obliged to register the memorandum, the articles and other documents, if any, and issue a ‘certificate of incorporation’ within thirty days, which is a conclusive proof of its formation in terms of Part IX A. [Section 581C (2)]. The incorporation of Producer Company is effective from the date mentioned in the certificate of registration granted by the Registrar of Company. On incorporation, a company becomes a juristic person, i.e. a person in the eyes of law. It has perpetual succession i.e. its members may come and go but the company goes on till it is wound up by following the process of law. It has a common seal, which is affixed on all the documents executed on behalf of the company in the presence of a director and be signed by the authorized signatory or signatories. It is empowered to hold all properties in its own name and has its own right. It can sue others and can be sued by other and enter into contracts in its own name. Power of Attorney All the work required to incorporate the Producer Company can be done either by the Board of Directors or alternatively, the General Body can authorize anyone of them or any other person to follow the matter with the RoC (in most cases the service of a Chartered Accounting firm or Company Secretary is acquired for the purpose). In the latter case, they have to execute a power of attorney in favour of the person, who is authorised to act on their behalf. A power of attorney form duly stamped and executed by all the subscribers of directors have to be submitted to the RoC. A power of attorney holder is, specifically, authorised to make corrections, as may be necessary in the Memorandum and Articles of Association and all other documents filed with the RoC and to attest the same on their behalf and to receive the Certificate of Incorporation. Step 7: Tasks to be completed immediately after incorporation of the PC The following tasks have to be completed immediately after incorporation: Open a Bank Account with minimum two officially nominated signatories in the name of the Company. Procure PAN number from the Income Tax and TIN number from the Commercial Tax Department to carry out business. Also, the company have to register itself for Service Tax from Commercial Tax Department and VAT from Excise department. KMI-6 4 Apply for the commercial connection of Power supply to related agency/board for the office of the PC. Establishment of company office means arrangement of furniture and fixture along with a visible signage board. 1.1 Estimated cost for incorporation of a Producer Company Table 2 below provides an estimated cost required for the incorporation of a producer company with minimum mandatory authorised capital of Rs. 5 lacs. Table 1: Estimated cost for incorporation of a Producer Company Particular Heads Amount (Rs) Application for name of PC Fees 500.00 Digital Signature Fees 2,600.00 Stamp duty Memorandum of Association (MoA) 500.00 Article of Association(AoA) 1,000.00 Registration/ filing fees MoA 16,000.00 AoA 300.00 Form-1 300.00 Form-18 300.00 Form-32 300.00 Fees of CA / CS15 firm* Consultancy fees 10,000.00 Stamps cancellation Charge 300.00 Affidavit expenses Fees of Notary 450.00 Share transfer fees & processing charge 5,000.00 Total 37,550.00
Section 581C of the Act lays down the provision relating to formation and registration of a producer company. Any ten or more individuals, each of them being a producer, or any two or more producer institutions or a combination of ten or more individuals and producer institutions, desirous of forming a producer company having its objects, specified in Section 581B and otherwise complying with the requirements of this Part and the provisions of this Act in respect of registration, may form an incorporated company as Producer Company under this Act. A Producer Company can be incorporated only for the objects as enumerated in Section 581B of the Companies Act, 1956 and for no other purpose, whether directly or indirectly. It is legal requirement for a producer company to have a Chief Executive whose position is akin to that of a Managing Director in companies other than producer companies. The following steps shall be involved in the formation of producer company: (1) Select few suitable names which should indicate as far as possible the main object of the proposed producer company with “Producer Company Limited” as the last words of the name of such company. Ascertain the availability of name from the Registrar of Companies by making an application electronically in e-form 1A for the purpose along with the prescribed application fee of ` 1000/-. The application shall be made to the Registrar of the State in which the registered office of the producer company is proposed to be situated. The provisions as regard the selection of name, as are applicable in terms of Section 20 of the Act read with Emblems and Names (Prevention of Improper Use) Act, 1950 shall mutatis mutandis apply to producer companies; name must be according to Name Availability Guidelines, 2011 (See Annexure I). (2) On receipt of communication from the Registrar of Companies intimating that the name applied for is available, get the Memorandum and Articles of Association of the company drafted and printed. The Memorandum and Articles of Association should be prepared in accordance with Section 581F and 581G respectively of the Act (3) Stamping and Signing of Memorandum and Articles: The memorandum and articles of association should be got printed and stamped by the appropriate State Authority (Collector of Stamps) in accordance with the requirement of the Indian Stamp Act, 1899. Thereafter, the memorandum and the articles should be signed by the requisite subscribers, i.e., ten or more individuals, each of whom being a producer or any two or more producer institutions or a combination of ten or more of such producers and producer institutions. Each subscriber to the memorandum shall write in his/her own hand, his/her father/husband’s name, occupation, address and the number of shares subscribed for by him/her. The signatures of all the subscribers shall also be witnessed. The witness shall also sign and write in his own hand, his name, his father’s name, occupation and address. (4) Dating of Memorandum and Articles: The memorandum and articles are then dated. The date must be the date of stamping or later than the date of stamping and not a date prior to the date of stamping. (5) Objects of the Producer Company: The object clause of the memorandum of association of the producer company must specify all or any of the matters specified in Section 581B. (6) Appointment of first directors: The first director of the producer company be named in the articles of the Company who will hold office till directors are appointed within a period of ninety days of the registration of the producer company. However in case of an inter-state co-operative society which has been registered as Producer Company under Section 581J(4) the words ‘ninety days’ shall be substituted by “three hundred and sixty five days”. The number of directors shall not be less than five (Sections 581O and 581P). (7) Filing of Documents and Forms for Registration (electronically as attachment with e-form 1): Documents : (i) Memorandum and articles of association duly stamped, signed and dated. (ii) Power of Attorney, duly stamped and executed by all the subscribers, authorising any one of them or any other person to follow up the matter with the Registrar of Companies. [See Annexure XV at the end of Study]. (iii) Agreement, if any, for appointment of the Chief executive; Forms (to be filed electronically) (i) A statutory declaration in e-form No. 1 (on Stamp Paper) as prescribed in the Companies (Central Government’s) General Rules and Forms (Amendment) Rules, 2006, declaring compliance of all and incidental matters regarding formation of companies [Section 33(2)]. (ii) e-form No. 18 containing notice of situation or change of situation of registered office of the company. (For specimen of e-form No. 18, notice of situation/change of situation of registered office, please refer the CD provided along with the Study Material or see the link http://www.mca.gov.in/MCA21/ Download_eForm_choose.html). It has to be stated in this form whether Registered Office is Owned by company; or Owned by Director (not taken on lease by company) or Taken on Lease by Company or Owned by any other entity/Person (Not taken on lease by company. This form is to be pre certified by any one of these professionals - company secretary or chartered accountant or cost accountant (in whole-time practice). Further the company secretary or chartered accountant or cost accountant (in whole-time practice) has to personally visit the registered office address or premises of the company and has to verify that the company actually exists at this address. In this context, he also has to certify that he has personally visited the registered office address, verified it and is of the opinion that the premises are indeed at the disposal of the applicant company. Following documents have to be attached to e-Form 18: (a) Proof of Registered Office address – which is mandatory attachment (b) No-objection certificate from director if registered office is owned by director (not taken on lease by company) (c) A proof that the company is permitted to use the address as the registered office of the company if the same is owned by any other entity/person (not taken on lease by company. thanks