The Company Act of 2013 governs the incorporation and operation of companies in India, affecting all businesses and entrepreneurs. The scope of this statute extends to all types of companies, including private and public limited companies, with a minimum paid-up capital of $1,000.
The effective date of the Company Act is April 1, 2014, with a threshold of 20% foreign direct investment (FDI) for certain sectors.
Company Act and GST Law
The Company Act of 2013, Section 2(20), defines a company, while the Goods and Services Tax (GST) Act of 2017, Section 2(17), defines a taxable person. The legal standard governing the incorporation of companies is the doctrine of separate legal entity, as established in the case of Salomon v. Salomon & Co. Ltd. (1897) AC 22. This means that a company is considered a separate entity from its shareholders, with a minimum authorized capital of $100,000.
In practice, this means that companies must comply with the provisions of the Company Act and the GST Act, including the requirement to file annual returns within 60 days of the end of the financial year, as per Section 137 of the Company Act. The GST Act also requires companies to file monthly returns, with a late fee of $100 per day, as per Section 47 of the GST Act.
Eligibility and Requirements
The eligibility criteria for incorporating a company in India include a minimum of two shareholders and two directors, with at least one director being a resident of India for a period of 182 days. The income threshold for companies is a minimum paid-up capital of $1,000, with a waiting period of 30 days for the registration of the company. The Companies (Incorporation) Rules, 2014, Rule 13, require companies to have a registered office within 30 days of incorporation.
In plain terms, this means that companies must meet the residency requirements and income thresholds, with a minimum net worth of $10,000, as per the Foreign Exchange Management Act, 1999. The Companies Act also requires companies to have a minimum of four board meetings per year, with a quorum of at least two directors, as per Section 173 of the Company Act.
Required Documents
The required documents for incorporating a company in India include the Memorandum of Association (MoA) and the Articles of Association (AoA), which must be filed with the Registrar of Companies (RoC) within 60 days of incorporation. The MoA must contain the name, object, and authorized capital of the company, while the AoA must contain the rules and regulations governing the company. The Companies (Incorporation) Rules, 2014, Rule 10, require companies to file a declaration of compliance with the RoC.
The documents can be obtained from the Ministry of Corporate Affairs (MCA) website, with a fee of $50 for the MoA and $100 for the AoA. Common mistakes include incorrect filing of the MoA and AoA, with a penalty of $500 for non-compliance, as per Section 7 of the Company Act.
The Filing Process
Step 1: Name Approval
The first step in incorporating a company in India is to obtain name approval from the RoC, with a fee of $20. The name of the company must be unique and not similar to any existing company, with a minimum of two and a maximum of 50 characters. The Companies (Incorporation) Rules, 2014, Rule 8, require companies to file a name application with the RoC.
The name approval process takes around 2-3 days, with a validity period of 60 days. If the name is not approved, the company can file a revised name application, with a fee of $10, as per the Companies (Incorporation) Rules, 2014, Rule 9.
Step 2: MoA and AoA Filing
The second step is to file the MoA and AoA with the RoC, with a fee of $100 for the MoA and $200 for the AoA. The MoA and AoA must be filed within 60 days of name approval, with a penalty of $500 for non-compliance, as per Section 7 of the Company Act.
The MoA and AoA must be signed by all the subscribers, with a minimum of two subscribers, and must be witnessed by at least two witnesses. The Companies (Incorporation) Rules, 2014, Rule 10, require companies to file a declaration of compliance with the RoC.
Costs and Timeline
The costs of incorporating a company in India include the registration fee, which ranges from $100 to $1,000, depending on the authorized capital of the company. The attorney costs range from $500 to $2,000, depending on the complexity of the case. The timeline for incorporation is around 10-15 days, with a minimum of 7 days for name approval and 3 days for MoA and AoA filing.
In practice, this means that companies must budget around $1,500 to $3,000 for the incorporation process, with a timeline of around 2-3 months for the entire process, including the waiting period for the registration of the company. The Companies Act requires companies to file annual returns within 60 days of the end of the financial year, with a late fee of $100 per day, as per Section 137 of the Company Act.
State-by-State Differences
The FDI rules differ from state to state, with some states having more restrictive policies than others. For example, the state of Maharashtra has a threshold of 26% FDI for certain sectors, while the state of Gujarat has a threshold of 30% FDI. The Companies Act requires companies to comply with the provisions of the Act, including the requirement to file annual returns within 60 days of the end of the financial year, as per Section 137 of the Company Act.
The state of Karnataka has a minimum paid-up capital requirement of $10,000, while the state of Tamil Nadu has a minimum paid-up capital requirement of $5,000. The GST Act requires companies to file monthly returns, with a late fee of $100 per day, as per Section 47 of the GST Act.
What Can Go Wrong
Common mistakes in the incorporation process include incorrect filing of the MoA and AoA, with a penalty of $500 for non-compliance, as per Section 7 of the Company Act. Missed deadlines can result in a penalty of $100 per day, as per Section 137 of the Company Act. The Companies Act requires companies to have a minimum of four board meetings per year, with a quorum of at least two directors, as per Section 173 of the Company Act.
The enforcement options include fines and penalties, as well as the possibility of the company being struck off the register, with a notice period of 30 days, as per Section 248 of the Company Act. The GST Act requires companies to file monthly returns, with a late fee of $100 per day, as per Section 47 of the GST Act.
- Office of the Law Revision Counsel. relevant federal statute
- U.S. Courts. federal court procedures
- USA.gov. relevant government resource
