The Companies (Incorporation)Fourth Amendment Rules, 2018

MINISTRY OF CORPORATE AFFAIRS
NOTIFICATION
New Delhi, the 18th December, 2018

G.S.R. 1219(E).—In exercise of the powers conferred by clause (41) of section 2, section 3, sub-section (1) of
section 7, section 10A, section 14 and sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013),
the Central Government hereby makes the following rules further to amend the Companies (Incorporation) Rules, 2014,
namely: –
1. (1) These rules may be called the Companies (Incorporation)Fourth Amendment Rules, 2018.
(2) They shall come into force on the date of their publication in the official Gazette.
2. In the Companies (Incorporation) Rules, 2014 (hereinafter referred to as the said rules), after rule 23, the following
rule shall be inserted, namely:-
“23A. Declaration at the time of commencement of business.-The declaration under section 10A by a director shall be
in Form No.INC-20A and shall be filed as provided in the Companies (Registration Offices and Fees) Rules, 2014 and
¹Hkkx IIµ[k.M 3(i)º Hkkjr dk jkti=k % vlk/kj.k 13
the contents of the said form shall be verified by a Company Secretary or a Chartered Accountant or a Cost Accountant,
in practice:
Provided that in the case of a company pursuing objects requiring registration or approval from any sectoral regulators
such as the Reserve Bank of India, Securities and Exchange Board of India, etc., the registration or approval, as the case
may be from such regulator shall also be obtained and attached with the declaration.”.
3. In the said rules, after rule 39, the following rules shall be inserted, namely:-
“40.Application under sub-section (41) of section 2 for change in financial year
(1) The application for approval of concerned Regional Director under sub-section (41) of section 2 , shall be filed in
e-Form No.RD-1along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 and
shall be accompanied by the following documents, namely:-
(a) grounds and reasons for the application;
(b) a copy of the minutes of the board meeting at which the resolution authorising such change was passed, giving details
of the number of votes cast in favour and or against the resolution;
(c) Power of Attorney or Memorandum of Appearance, as the case may be;
(d) details of any previous application made within last five years for change in financial year and outcome thereof along
with copy of order.
(2) Where the Regional Director on examining the application, referred to in sub-rule (1), finds it necessary to call for
further information or finds such application to be defective or incomplete in any respect, he shall give intimation of
such information called for or defects or incompleteness, on the last intimated e-mail address of the person or the
company, which has filed such application, directing the person or the company to furnish such information, or to rectify
defects or incompleteness and to re-submit such application within a period of fifteen days, in e-Form No. RD-GNL-5.
Provided that a maximum of two re-submissions shall be allowed.
(3) (a) In case where such further information called for has not been provided or the defects or incompleteness has not
been rectified to the satisfaction of the Regional Director within the period allowed under sub-rule (2), the Regional
Director shall reject the application with reasons within thirty days from the date of filing application or within thirty
days from the date of last re-submission made as the case may be.
(b) In case where the application is found to be in order, Regional Director shall allow and convey the order within thirty
days from the date of application or within thirty days from the date of last re-submission, as the case may be.
(c) where no order for approval or re-submission or rejection has been explicitly made by the Regional Director within
the stipulated time of thirty days, it shall be deemed that the application stands approved and an approval order shall be
automatically issued to the applicant.
(4) The order conveyed by the Regional Director shall be filed by the company with the Registrar in Form No.INC-28
within thirty days from the date of receipt of the order along with fee as provided in the Companies (Registration Offices
and Fees) Rules, 2014.
41. Application under section 14 for conversion of public company into private company. (1) An application under
the second proviso to sub-section (1) of section 14 for the conversion of a public company into a private company, shall,
within sixty days from the date of passing of special resolution, be filed with Regional Director in e-Form No. RD-1
along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014 and shall be accompanied
by the following documents, namely:-
(a) a draft copy of Memorandum of Association and Articles of Association , with proposed alterations including the
alterations pursuant to sub-section (68) of section 2;
14 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(i)]
(b) a copy of the minutes of the general meeting at which the special resolution authorising such alteration was passed
together with details of votes cast in favour and or against with names of dissenters;
(c) a copy of Board resolution or Power of Attorney dated not earlier than thirty days, as the case may be, authorising to
file application for such conversion;
(d) declaration by a key managerial personnel that pursuant to the provisions of sub-section (68) of section 2, the
company limits the number of its members to two hundred and also stating that no deposit has been accepted by the
company in violation of the Act and rules made thereunder;
(e) declaration by a key managerial personnel that there has been no non-compliance of sections 73 to 76A, 177, 178,
185,186 and 188 of the Act and rules made thereunder;
(f) declaration by a key managerial personnel that no resolution is pending to be filed in terms of sub-section (3) of
section 179 and also stating that the company was never listed in any of the Regional Stock Exchanges and if was so
listed, all necessary procedures were complied with in full for complete delisting of the shares in accordance with the
applicable rules and regulations laid down by Securities Exchange Board of India:
Provided that in case of such companies where no key managerial personnel is required to be appointed, the aforesaid
declarations shall be filed any of the director.
(2) Every application filed under sub-rule (1) shall set out the following particulars, namely:-
(a) the date of the Board meeting at which the proposal for alteration of Memorandum and Articles was approved;
(b) the date of the general meeting at which the proposed alteration was approved;
(c) reason for conversion into a private company, effect of such conversion on shareholders, creditors, debenture holders,
deposit holders and other related parties;
(d) details of any conversion made within last five years and outcome thereof along with copy of order;
(e) details as to whether the company is registered under section 8.
(3) There shall be attached to the application, a list of creditors, debenture holders, drawn up to the latest practicable date
preceding the date of filing of application by not more than thirty days, setting forth the following details, namely:-
(a) the names and address of every creditor and debenture holder of the company;
(b) the nature and respective amounts due to them in respect of debts, claims or liabilities;
(c) in respect of any contingent or unascertained debt, the value, so far as can be justly estimated of such debt:
Provided that the company shall file an affidavit, 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 enquiry into affairs of the company and, having done so, have formed an
opinion that the list of creditors and debenture holders is correct, and that the estimated value as given in the
list of the debts or claims payable on contingency or not ascertained are proper estimates of the values of such
debts and claims that there are no other debts, or claims against, the company to their knowledge.
(4) A duly authenticated copy of the list of creditors and debenture holders 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 business,
inspect, and take extracts from the same on payment of ten rupees per page to the company.
(5) The company shall, atleast twenty-one days before the date of filing of the application_
(a) advertise in the Form No.INC.25A, in a vernacular newspaper in the principal vernacular language in the district
and in English language in an English newspaper, widely circulated in the State in which the registered office of the
company is situated;
¹Hkkx IIµ[k.M 3(i)º Hkkjr dk jkti=k % vlk/kj.k 15
(b) serve, by registered post with acknowledgement due, individual notice on each debenture holder and creditor of the
company; and
(c) serve, by registered post with acknowledgement due, a notice to the Regional Director and Registrar and to the
regulatory body, if the company is regulated under any law for the time being in force.
(6) (a) Where no objection has been received from any person in response to the advertisement or notice referred to in
sub-rule (5) and the application is complete in all respects, the same may be put up for orders without hearing and the
concerned Regional Director shall pass an order approving the application within thirty days from the date of receipt of
the application.
(b) Where the Regional Director on examining the application finds it necessary to call for further information or finds
such application to be defective or incomplete in any respect, he shall within thirty days from the date of receipt of the
application, give intimation of such information called for or defects or incompleteness, on the last intimated e-mail
address of the person or the company, which has filed such application, directing the person or the company to furnish
such information, to rectify defects or incompleteness and to re-submit such application within a period of fifteen days in
e-Form No. RD-GNL-5:
Provided that maximum of two re-submissions shall be allowed.
(c) In cases where such further information called for has not been provided or the defects or incompleteness has not
been rectified to the satisfaction of the Regional Director within the period allowed under sub- rule (6), the Regional
Director shall reject the application with reasons within thirty days from the date of filing application or within thirty
days from the date of last re-submission made, as the case may be.
(d) Where no order for approval or re-submission or rejection has been explicitly made by the Regional Director within
the stipulated period of thirty days, it shall be deemed that the application stands approved and an approval order shall be
automatically issued to the applicant.
(9) (i) Where an objection has been received or Regional Director on examining the application has specific objection
under the provisions of Act, the same shall be recorded in writing and the Regional Director shall hold a hearing or
hearings within a period thirty days , as required and direct the company to file an affidavit to record the consensus
reached at the hearing, upon executing which, the Regional Director shall pass an order either approving or rejecting
the application along with reasons within thirty days from the date of hearing, failing which it shall be deemed that
application has been approved and approval order shall be automatically issued to the applicant.
(ii) In case where no consensus is received for conversion within sixty days of filing the application while hearing or
otherwise, the Regional Director shall reject the application within stipulated period of sixty days:
Provided that the conversion 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.
(10) On completion of such inquiry, inspection or investigation as a consequence of which no prosecution is envisaged or
no prosecution is pending, conversion shall be allowed.
(11) The order conveyed by the Regional Director shall be filed by the company with the Registrar in Form No.INC-28
within fifteen days from the date of receipt of approval along with fee as provided in the Companies (Registration
Offices and Fees) Rules, 2014.”.