Starting a new business is not rocket science if one keeps the basic legal requirements in mind. The present article lists down the main legal formalities required to start a Company form of business in India.
There are many forms in which a business can be organized. Usually, the following models are popular:
- Sole Proprietorship
- Partnership ,including Limited Liability Partnerships called (LLP)
- Company – Public/Private
While there are certain processes that are common to any form of business organization, each one of the above has certain peculiar requirements. This article analyzes the requirements for starting a Company. These may vary from State to State and may change from time to time. Also a business may require additional (or not all of the below mentioned) registrations, compliance and certifications.
Incorporating your company
The first step in getting your company registered is the approval of name for the Company. Generally, it takes about seven days to get the approval. The following steps are required for name approval:
You have to file an application in Form No. 1A with the Registrar of Companies (ROC) of the State in which the Registered Office of the Company is proposed to be situated. The application is to be signed by one of the promoters and must contain the following details:
Minimum 2 alternative names for the proposed Company. (The name can be coined names from the objects of the Company or the names of the directors, etc. but should definitely be indicative of the main object of the Company. Justification for the name needs to be specified along with the application).
Names and address of the members (minimum 7 for a public Company and 2 for a private Company).
Authorized Capital of the Company (Minimum Rs.5 Lac for a public Company and Rs. 1 lac for a private Company).
Main objects of the Company
On submitting the application, the ROC scrutinizes the same and sends the approval/objections in about 10 days to the applicant.
Director Identification Number (DIN)
Directors for an Indian company, both Indian and foreigners, must register and get identification number under the new requirements. It is called Director Identification Number (DIN). The application needs to be filed online.
The form along with the supporting documents (PAN Card & Residence proof duly attested by CA, Notary or Gazette Officer) is to be sent to the offices designated by respective ROCs.
The fee for obtaining DIN can be deposited online or deposited in banks authorized for this purpose.
Digital Signature Certificate (DSC)
Directors for an Indian company, both Indian and foreigners, are also required to get Digital Signature Certificate (DSC). DSC is required for all Directors or authorized representatives of any Company as well as the professionals who will sign ROC forms or documents.
Memorandum and Articles of Association (Memorandum and Articles respectively)
While the Memorandum states the main, ancillary/subsidiary and other objects of the Company, the Articles contain the rules and procedures for the routine conduct of the Company. The Memorandum also states the authorized share capital of the Company and the names of its first directors.
Memorandum and Articles also need to be stamped. The stamp duty depends on the authorized share capital.
Documents Required to be Filed with ROC
The following documents are required to be submitted to the ROC :
Memorandum and Articles - These are required to be executed by the promoters in their own hand in the presence of a witness in quadruplicate stating their full name, father’s name, residential address, occupation, number of shares subscribed etc.
Form No. 1 - This is a declaration to be executed on a non-judicial Rs 20 stamp paper by one of the directors of the Company or other specified persons such as attorneys or advocates stating that all the requirements of the incorporation have been complied with.
Form No. 18 - This is to be filed by one of the directors of the Company informing the ROC of the registered office of the Company.
Form No. 29 - This is the consent obtained from all the proposed directors of the Company to act as directors of the Company. (Not required in case of private Company).
Form No. 32 - This states the appointment of the proposed directors on the board of directors from the date of incorporation of the Company and is signed by one of the proposed directors.
Name approval letter in original.
Power of Attorney signed by all the subscribers to Memorandum authorizing one of the subscribers or any other person to act on their behalf for the purpose of incorporation and accepting the certificate of incorporation.
Power of Attorney in case of a subscriber who has appointed another person to sign the Memorandum on his behalf.
Applicable filing fees.
These documents need to be filed online first and then a physical copy should be submitted to the ROC.
Certificate of Incorporation
After the above documents are filed, the ROC calls the attorney on a specified date for scrutiny and making corrections, if any in the Memorandum and Articles filed. On complying with the same, the certificate of incorporation is sent by post to the registered office of the newly registered company.
Web resource : mca.gov.in
Income Tax related compliance
Permanent Account Number (PAN)
After incorporation, the Company must obtain its PAN. For this purpose, an application needs to be filed with the Income Tax Department in Form 49A with the necessary documents. PAN is mandatory for opening of Bank Account, filling of Income Tax returns and various other financial transactions.
Tax Deduction Account Number (TAN)
After incorporation, the Company must also obtain a TAN. For this purpose, an application needs to be filed with the Income Tax Department in Form 49B with necessary documents. TAN is required for depositing of TDS/TCS.
Web resource: incometaxindia.gov.in
Other Tax compliance
Value Added Tax
VAT registration is required for a trading business. This is to be applied for to the local Sales Tax Department in the prescribed forms along with specified fees and necessary documents. On completion of the formalities, a Tax Identification Number (TIN) is granted.
It is a tax on profession (including employment). Professional tax is applicable in some states in India and the rate of tax also varies from State to State.
Service tax is applicable on an entity which is engaged in providing prescribed services. There are more than 100 services on which service tax is currently applicable. The rate of service tax presently is 10%.
Web resource : exciseandservicetax.nic.in
The Shops & Establishment Act
The Shops and Establishment Act is a State legislation and, thus, each state has its own rules for the Act. The objective of this Act is to lay down statutory obligation and rights of employers as well as the employees. Registration of shop/establishment is mandatory within 30 days of commencement of work.
Employees Provident Fund Organization
Provident fund registration is compulsory if the size of your workforce is 20 or more. The employer is required to provide necessary information to the concerned regional Provident Fund Organization (EPFO) in the prescribed form for allotment of Establishment Code Number.
Employees State Insurance Corporation (ESIC)
Employees’ State Insurance Scheme of India is an integrated social security scheme tailored to provide social protection to workers in the organized sector and their dependents in contingencies such as sickness, maternity or death and disablement due to an employment related injury or occupational disease.
The ESI Act, (1948) applies to the following categories of factories and establishments in the implemented areas:-
Non-seasonal factories using power and employing ten (10) or more persons.
Non-seasonal and non-power using factories and establishments employing twenty (20) or more persons.
The employer is required to provide necessary information to the concerned regional ESI department in the prescribed form for allotment of Establishment Code Number.
Importer Exporter Code (IEC)
IEC Code is mandatory for doing import or export.
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