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Companies (Incorporation) Second Amendment Rules, 2022

Companies (Incorporation) Second Amendment Rules, 2022

The Ministry of Corporate Affair (MCA) has notified Companies (Incorporation) Second Amendment Rules, 2022 to further amend the Companies (Incorporation) Rules, 2014. Through this amendment, the Ministry has substituted Form No. INC-9 (Declaration by Subscribers and First Directors) and FORM No.INC-32 (SPICe+). The new form will be effective from 1st June 2022.  The Companies (Incorporation) Second Amendment Rules, 2022 is briefly explained in the present article.

Form INC-9 – Declaration by Subscribers and First Directors

Form INC 9 is a declaration form wherein the director and subscribers to the memorandum of the company give a declaration that he/she has not been convicted under the Companies Act and has not been found guilty of any offense and has made all the Compliances concerning the filing of all the respective documents with Registrar of companies (ROC). One will have to attach form INC-9 while submitting the SPICE INC-32 form of registration of the company.

The new Form No. INC-9 (Declaration by Subscribers and First Directors) introduced vide the Companies (Incorporation) Second Amendment Rules, 2022 is attached here for ready reference:

Companies (Incorporation) Second Amendment Rules, 2022

Governing Law

The Form INC-9 is to be attached with SPICE INC-32 under Section 7(1) (c) to the companies Act, 2013 and rule 15 of the Companies (Incorporation) Rules, 2014.

Amendment in Form No. INC-9

According to the Companies (Incorporation) Second Amendment Rules, 2022, the following person needs to provide a declaration in Form No. INC-9:

• The authorized person of non-individual first subscribers
• Particulars of individual first subscribers other than subscriber cum director
• Individual first subscribers cum directors
• Directors other than the first subscriber

Amendment in Declaration Details of Form INC-9

According to Companies (Incorporation) Second Amendment Rules, 2022, subscribers/directors of a company will have to submit an affidavit to declare the following:

• I have not been convicted of any offense in connection with the promotion, formation, or management of any company during the preceding five years
• I have not been found guilty of any fraud or misfeasance or any breach of duty to any company under the Companies Act for the preceding five years
• I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 before the subscription of
• I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 before the subscription of shares and the same has been obtained and is enclosed herewith
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief.

The Attribute of Form INC-9

While filing the SPICe INC-32 form for incorporation of a company, Form INC-9 for a declaration by the Subscriber / First Director of a company needs to be attached. This declaration contains the following information:

• Total number of first subscribers (non-individual + individual)
• Number of non-individual first subscribers
• Number of individual first subscribers cum directors
• Total number of directors
• Name of the Authorized person of non-individual first subscribers
• Income tax Permanent Account Number
• Director Identification number
• Name of the Subscriber/ First Director
• Declaration regarding No Conviction or Offence Registered under Companies Act, 2013
• Declaration regarding No Fraud or Misfeasance Committed under Companies Act, 2013

Applicability of form INC-9

All the proposed companies, while submitting form INC-32, will have to attach the form INC-9.

• Part I LLP to Company- [where the total number of subscribers and/or directors is less than or equal to 20 and all such subscribers and/or directors have DIN/PAN]
• Part I Firm to the company – [where the total number of subscribers and/or directors is less than or equal to 20 and all such subscribers and/or directors have DIN/PAN]
• Part I Section 8 company [where the total number of subscribers and/or directors is less than or equal to 20 and all such subscribers and/or directors have DIN/PAN]
• Section 8 company [where the total number of subscribers and/or directors is greater than 20 OR any such subscribers and/or directors does not have DIN/PAN]
• Other than Part I Section 8 company/ Part I LLP to Company/ Part I Firm to company/Section 8 companies. [where the total number of subscribers and/or directors is less than or equal to 20 and all such subscribers and/or directors have DIN/PAN]

Who will have to attach form INC-9?

The following individuals will have to provide Form INC-9:

• All the subscribers of the new company
• All the first directors of the new company

NRI subscribers and first directors will have to provide apostilled and notarised form INC-9.

When to attach Form INC-9?

As mentioned above, INC-9 needs to be filed as an attachment to SPICe INC-32. Since this is an attachment of SPICe INC-32. You first need to gather Declaration from all the Subscribers and First Directors of the company. Create a single PDF file of the same. And follow the below steps.

Steps to Attach Form INC-9 – Subscriber Declaration

Form INC-9 shall be auto-generated in pdf format and would have to be submitted only in electronic form in all cases, except where:

• The total number of subscribers and/or directors is greater than 20 and/or
• Any such subscribers and/or directors have either DIN or PAN

Online Attachment Procedure

Open the INC-32 SPICe structure and Go to the attachments section. Select Attach against Declaration by First Subscriber(s) and Directors from the Attachments menu.

Amendment in Form INC.32 (SPICe+)

According to the Companies (Prospectus and Allotment of Securities) Amendment Rules, 2022, The body corporate need to obtain government approval under the FEMA (Non-debt Instruments) Rules, 2019 to offer any securities to a body corporate incorporated in or a national of a country which shares a land border with India.

Hence, MCA vides the Companies (Incorporation) Second Amendment Rules, 2022 made the following amendment in the Form No.INC-32 (SPICe+) in Part B in Declaration.

I, on behalf of the proposed directors, hereby declare that person seeking appointment is a national of a country that shares a land border with India, necessary security clearance from the Ministry of Home Affairs, Government of India shall be attached with the consent. O Yes O No. (if yes is opted, a copy of the security clearance is to be attached)”.

For more details on SPICe Plus For Company Incorporation, click here