Procedure for change in Registered Office of a Company under the Companies Act, 2013

Background

A Company shall, on and from the fifteenth day of its incorporation and at all times thereafter, have a Registered Office capable of receiving and acknowledging all communications and notices as may be addressed to it (Section 12(1) of CA 2013).

A Registered Office has the following significance for a Company:

A place to maintain Statutory Registers and Annual Returns
A place to maintain books of account of the Company
Annual General Meeting to be held in the same city as the Registered office (Section 96)
Decides the governing jurisdiction under certain statutes.
Sometimes, business exigencies may require a Company to change its Registered Office. The change could be within the same state or even to a different state.

This Article examines the step by step procedure (as enumerated in Sec 12 of the CA 2013 and Company (incorporation) Rules, 2014) to be followed by the Company to change its Registered Office.

Change within the same state

1. Convene a meeting of the Board of Directors of the Company and pass a resolution for change of address.

2. If the office is shifted to some other city, albeit in the same State, then approval of shareholders is also required by passing a special resolution in a General Meeting

3. File e-Form INC-22 within 15 days of the Board / Member meeting resolution (as applicable).

eForm INC-22 has to be uploaded with the following attachments:

Either of the following

– In case of owned premises, registered proof of ownership in the name of the Company

– In case of leased premises, notarised copy of lease deed or rent agreement with rent receipts not older than one month

– In case the premises is neither owned nor taken on lease by the Company, the proof that the Company is authorised to use the premises

– Copies of utility bills like telephone bill, gas bill, electricity bill depicting the address in the name of the owner not to be older than 2 months

– Certified True Extracts of the Resolutions passed in the Board / Shareholder meeting

– In case where special resolution is passed in the shareholders meeting, file eForm MGT-14 within the Registrar of Companies within 30 days of passing of the resolution.

Change from one registrar to another registrar

The following additional steps are also to be followed in addition to the normal procedure as given above:

1. File an application seeking confirmation from the Regional Director in form INC-23 along with the fee.

2. The Company shall, not less than one month before filing any application with the regional director for the change of registered office –

a. Publish at least once in a daily newspaper published in English and in the principal language of that district in which the registered office is situated and circulating it in that district.

b. serve individual notice on each debenture holder, depositor and creditor of the company, clearly indicating the matter of application and stating that any person whose interest is likely to be affected by the proposed alteration of the memorandum may intimate his nature of interest and grounds of opposition to the Regional Director with a copy to the company within twenty one days of the date of publication of that notice

Change of Registered Office to another state

If the change of Registered Office is proposed from one state to another, it results in change in jurisdiction of governing Court. Hence, this process requires prior approval of Central Government, which examines if the propose change is prejudicial to the interest of employees, creditors and debenture-holders.

Further, the Memorandum of Association of every Company has a Registered Office clause which mentions the state in which the Company’s Registered office will be situated. Hence, the MoA of the Company is also required to be altered.

The following procedures need to be followed:

1. Convene a Board of Directors meeting pass a resolution for change in Registered Office and amendment of the MoA of the Company.

2. Pass a special resolution in the General Meeting for change of Registered Office and alteration of MoA.

3. File the special resolution with ROC in eForm MGT-14 within 30 days of change.

4. File eForm INC-23 to seek approval from the Central Government with the following attachments

i. A copy of AoA and MoA

ii. A copy of notice of AGM along with the explanatory statements.

iii. A copy of resolution for change in Registered Office of the Company and alteration of MoA

iv. A copy of the minutes of the General Meeting containing the details regarding the number of votes cast in favor of and against the resolution.

v. An affidavit,verifying the application from the directors stating that no employee shall be retrenched as a consequence of shifting of the Registered Office

vi. A list of debenture holders and creditors entitled to object to the application along with

Their names and addresses
Nature and respective amounts due to them in respect of debts, claims and liabilities
An affidavit verifying the list of creditors signed by the Company Secretary if any and at least two directors one of whom shall be a Managing Director where there is one. The Affidavit should state that

– They have made a full enquiry into the affairs of the Company and having done so, have formed an opinion that the list of creditors is correct

– That the estimated value as given in the list of debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims against the Company to their knowledge.

The document relating to payment of application fee

A copy of Board resolution or Power of Attorney or the executed Vakalatnama, as the case may be.

Other considerations

Other practical aspects to be borne in mind whenever there is a change in Registered Office of the Company:

1. Intimate the Bankers of the Company

2. Amendment in Permanent Account Number

3. Intimate statutory authorities like Director General of Foreign Trade and amendment in Import Export Code.

4. Shift the statutory registers maintained by the Company to the new Registered Office. As per Section 94 of CA 2013, the annual return of the Company, register of members, register of debenture-holders and register of any other security holders can be kept at a place other than the Registered Office at any place in India where more than one-tenth of the members reside by passing a special resolution in the General Meeting and after giving the RoC a copy of the proposed resolution in advance.

5. Shift the books of accounts to the new registered office. As per section 128 of CA 2013, books of account can also be kept at a place other than the Registered Office at such other place in India as the Board of Directors may decide. The Company shall file a notice with the Registrar of Companies in writing within seven days of passing such resolution.

Extracts of relevant provisions of CA 2013 and Rules thereon

Section 12(4)

Notice of every change of the situation of the registered manner prescribed, after the date of incorporation of the company, shall be given to the Registrar within fifteen days of the change, who shall record the same.office, verified in the

Rule 25 of Companies (Incorporation) Rules, 2014

(1) The verification of the registered office shall be filed in Form No.INC.22 along with the fee, and

(2) There shall be attached to said Form, any of the following documents, namely :-

(a) the registered document of the title of the premises of the registered office in the name of the company; or

(b) the notarized copy of lease or rent agreement in the name of the company along with a copy of rent paid receipt not older than one month;

(c) the authorization from the owner or authorized occupant of the premises along with proof of ownership or occupancy authorization, to use the premises by the company as its registered office; and (d) the proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, as the case may be, which is not older than two months.

Rule 27 of Companies (Incorporation) Rules, 2014

The notice of change of the situation of the registered office and verification thereof shall be filed in Form No.INC.22 along with the fee and shall be attached to the said form, the similar documents and manner of verification as are specified for verification of Registered office on incorporation in terms of sub-section (2) of section 12.

Rule 28 of the Companies (Incorporation) Rules, 2014

(1) An application seeking confirmation from the Regional Director for shifting the registered office within the same State from the jurisdiction of one Registrar of Companies to the jurisdiction of another Registrar of Companies, shall be filed by the company with the Regional Director in Form no.INC.23 along with the fee.

(2) The company shall, not less than one month before filing any application with the Regional Director for the change of registered office.-

(a) publish a notice, at least once in a daily newspaper published in English and in the principal language of that district in which the registered office of the company is situated and circulating in that district; and

(b) serve individual notice on each debenture holder, depositor and creditor of the company, clearly indicating the matter of application and stating that any person whose interest is likely to be affected by the proposed alteration of the memorandum may intimate his nature of interest and grounds of opposition to the Regional Director with a copy to the company within twenty one days of the date of publication of that notice:

Provided that in case no objection is received by the Regional Director within twenty one days from the date of service or publication of the notice, the person concerned shall be deemed to have given his consent to the change of registered office proposed in the application:

Provided further that the shifting of registered office 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.

Rule 30 of Companies (Incorporation) Rules, 2014

(1) An application under sub-section (4) of section 13, for the purpose of seeking approval for alteration of memorandum with regard to the change of place of the registered office from one State Government or Union territory to another, shall be filed with the Central Government in Form No. INC.23 along with the fee and shall be accompanied by the following documents, namely:-

(a) a copy of the memorandum and articles of association;

(b) a copy of the notice convening the general meeting along with relevant Explanatory Statement;

(c) a copy of the special resolution sanctioning the alteration by the members of the company;

(d) a copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed, giving details of the number of votes cast in favor or against the resolution;

(e) an affidavit verifying the application;

(f) the list of creditors and debenture holders entitled to object to the application;

(g) an affidavit verifying the list of creditors;

(h) the document relating to payment of application fee;

(i) a copy of board resolution or Power of Attorney or the executed Vakalatnama, as the case may be.

(2) There shall be attached to the application, a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than one month, 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:

Provided that the applicant 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 a managing director, where there is one, to the effect that they have made a full enquiry into the affairs of the company and, having done so, have formed an opinion that the list of creditors is correct, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the company to their knowledge.

(3) There shall also be attached to the application an affidavit from the directors of the company that no employee shall be retrenched as a consequence of shifting of the registered office from one state to another state and also there shall be an application filed by the company to the Chief Secretary of the concerned State Government or the Union territory

(4) A duly authenticated copy of the list of creditors 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 a sum not exceeding ten rupees per page to the company.

(5) There shall also be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.

(6) The company shall at least fourteen days before the date of hearing-

(a) advertise the application in the Form No.INC.26 in a vernacular newspaper in the principal vernacular language in the district in which the registered office of the company is situated, and at least once in English language in an English newspaper circulating in that district;

(b) serve, by registered post with acknowledgement due, individual notice(s), to the effect set out in clause (a) on each debenture-holder and creditor of the company; and (c) serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the Securities and Exchange Board of India, in the case of listed companies and to the regulatory body, if the company is regulated under any special Act or law for the time being in force.

(7) Where any objection of any person whose interest is likely to be affected by the proposed application has been received by the applicant, it shall serve a copy thereof to the Central Government on or before the date of hearing

(8) Where no objection has been received from any of the parties, who have been duly served, the application may be put up for orders without hearing.

(9) Before confirming the alteration, the Central Government shall ensure that, with respect to every creditor and debenture holder who, in the opinion of the Central government, is entitled to object to the alteration, and who signifies his objection in the manner directed by the Central government, either his consent to the alteration has been obtained or his debt or claim has been discharged or has determined, or has been secured to the satisfaction of the Central Government.

(10) The Central Government may make an order confirming the alteration on such terms and conditions, if any, as it thinks fit, and may make such order as to costs as it thinks proper: Provided that the shifting of registered office 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.