Procedure for Conversion of Any Existing Company to Section 8 Company

Khushboo Sharma

Khushboo Sharma

Published on: Dec 4, 2023

Darshi Dave

Updated on: Dec 4, 2023

★★★★★(9 Rating)

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Introduction:

A Non-profit Company or Section 8 Company is a company which is formed out of charitable objects enunciated below:

• Has in its object promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object
• Intends to apply its profits, if any, or other income in furtherance of its objects and
• Prohibits any payment of dividend to its members.

Various provisions contained in Section 8(5) of the Companies Act, 2013 and Rule 20 of the Companies (Incorporation) Rules 2014 govern the procedure for conversion of any kind of existing company into a Section 8 company.

Applicable Provisions:

1. Section 8, 12, 15, 96, 100, 117, 173 of Companies Act, 2013
2. Rule 20 of Companies (Incorporation) Rules, 2014 read with the Companies (Incorporation) Amendment Rules, 2023
3. Secretarial Standard- 1 and Secretarial Standard- 2

Mandatory Requirements:

1. Necessary alterations to the Memorandum and Articles of Association of the Company.
2. Company shall seek approval of its Shareholders/Members for such conversion by passing a Special Resolution in a duly convened general meeting.
3. Publish a notice in Form INC-26 in vernacular language newspaper and English language newspaper.
4. Declaration to be furnished by an Advocate, Chartered Accountant, Cost Accountant or Company Secretary that the Memorandum and Articles are drawn in conformity with the provisions of Section 8 of the Act.

Procedure:

1. Convene a Meeting of Board of Directors or General Meeting:
   The Company shall convene a Meeting of its Board of Directors or General Meeting to pass a Board resolution or Special resolution*, as the case may be, for the following:
   • to consider and approve the proposal of conversion of such existing company to Section 8 Company
   • alteration of Memorandum of Association (MOA) of the Company subject to the approval of the Members of the Company
   • alteration of Articles of Association (AOA)
   • to delegate authority to Company Secretary or any one director of the company to sign, certify and file the required form with Registrar of Companies and to do all such acts and deeds as may be necessary to give effect to the conversion.
   Refer to the Procedure for Conducting Board Meeting and Procedure for Conducting General Meeting for detailed procedure.
   *Note: The company shall file Form MGT-14 with the Registrar of Companies (ROC) within 30 days of passing Special Resolution in General Meeting along with the requisite documents and fees as specified in the Companies (Registration offices and fees) Rules, 2014.
2. File application with Registrar for Grant of License:
   Any existing company registered under this Act or under any previous company law and is desirous of being registered under section 8, without the addition to its name of the word “Limited” or “Private Limited”, as the case may be, shall make an application in Form No. INC 12 along with the prescribed fee and the following details and documents:
   • e-Memorandum of Association and e-Article of Association of the company
   • declaration by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in Practice, that the memorandum and articles of association have been drawn up in conformity with the provisions of section 8 of the Act and rules made thereunder and that all the requirements of the Act and the rules made thereunderw.r.t registration of company u/s 8 of the Act and matters incidental or supplemental thereto have been complied with
   • Certified Copy of resolutions passed in general meeting and/ or board meeting approving registration of the company under section 8 of the Act
   • Declaration by each of the persons making the application
   • A statement showing in detail the assets (with the values thereof), and the liabilities of the company, as on the date of the application or within thirty days preceding that date
   • Approval/concurrence/NOC of the concerned authority/sectoral regulator, department or Ministry of the Central or State Government(s)
   • Statement showing in detail the assets and the liabilities of the company, as on the date of the preceding that date
   • Entrenched Articles of Association, if any
   • List of proposed promoters, director(s), and key managerial personnel
   • Estimation of future income and expenditure for the next three years
   • Any other Optional attachment (s) as may deem fit.
3. Publish the Notice of Conversion and Intimate the Registrar:
   • The company shall within a week from the application so made to the Registrar, publish a notice in Form No. INC 26, at its own expense at least once in:
   • a vernacular newspaper in the principal vernacular language of the district where the registered office of the proposed company is to be situated or is situated having wide circulation in that district,
   • English language newspaper circulating in that district and
   • on the websites as may be notified by Central Government.
   • A copy of such published notice shall be forthwith sent to the Registrar.
4. Approval of the Registrar and Grant of New License:
   • The Registrar shall consider the following:
     • Financial Statements of two years, immediately preceding the application date or
     • In case the company has functioned only for one financial year, for such year including Board’s reports and audit reports, relating to the existing companies
     and after due consideration of the objectives, received, if any, within 30 days from the date of publication of notice, may grant license in Form No. INC 16 or Form No. INC 17, as the case may be, decide, ensuing consultation with any authority, regulatory body, Department or Ministry of Central Government or the State Government(s), as it may deem necessary.
   • The Registrar may further direct the company to insert in its memorandum or articles or partly in one and partly in the other such conditions of the license as may be specified by Registrar in this behalf.
5. Post Conversion Compliances:
   • Every Alteration made in the Memorandum or Articles of the company shall be noted in every copy of the Memorandum or Articles as the case may be. [Section 15 (1)]
   • Every Company shall
     • Print the new Altered Memorandum and Articles of Association with new Certificate of Incorporation
     • Paint or affix its name, and address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in a conspicuous position, in legible letters, and if the characters employed therefor are not those of the language or of one of the languages in general use in that locality, also in the characters of that language or of one of those languages [Section 12(3)(a)]
     • have its name engraved in legible characters on its seal, if any [Section 12(3)(b)]
     • get its name, address of its registered office and the Corporate Identity Number along with telephone number, fax number, if any, e-mail and website addresses, if any, printed in all its business letters, billheads, letter papers and in all its notices and other official publications [Section 12(3)(c)]
     • have its name printed on hundies, promissory notes, bills of exchange and such other documents [Section 12(3)(d)]
   • Send the new address of registered office with all the Banks, authorities and other Basic Utility Service providers as applicable.
6. File Necessary Amendment Application under following Acts:
   • Goods and Services Act
   • Shops & Establishment Act
   • Factories Act
   • Inter-State Migrant Workmen Act
   • Private Security Agency Act
   • EPF and ESIC
   • Other Labor Laws
   • Industry Specific Laws.