On this page:.
What are the Types of Business Entities in India?
What is a Private Limited Company?
What is a Public Limited Company?
What are the advantages of a Limited Company?
What are the disadvantages of a Limited Company?
What entity is best suited?
What is the minimum paid-up capital of a Private Limited Company?
What is the difference between authorized capital and paid up capital?
What is the procedure in obtaining a name approval for the proposed Company?
What is the Memorandum of Association (MOA) and the Articles of Association (AOA) of a company and what is the procedure in their regard?
What are the documents required to be executed for incorporation?
How is the certificate of incorporation issued?
When can the newly formed company start its business operations?
How do we comply with the legal formalities when we are not stationed in India?
The following types of Business entitles are available in India:
In addition to the above legal entities, the following types of entities are available for foreign investors/foreign companies doing business in India:
A Private Limited Company is a Company limited by shares in which there can be maximum 200 shareholders, no invitation can be made to the public for subscription of shares or debentures, cannot make or accept deposits from Public and there are restriction on the transfer of shares. The liability of each shareholder is limited to the extent of the unpaid amount of the shares face value and the premium thereon in respect of the shares held by him. However, the liability of a Director / Manager of such a Company can at times be unlimited. The minimum number of shareholders is 2. For Details see: Private Limited Company in India
A Public Limited Company is a Company limited by shares in which there is no restriction on the maximum number of shareholders, transfer of shares and acceptance of public deposits. The liability of each shareholder is limited to the extent of the unpaid amount of the shares face value and the premium thereon in respect of the shares held by him. However, the liability of a Director / Manager of such a Company can at times be unlimited. The minimum number of shareholders is 7.
A limited company has following advantages:
A limited company has following disadvantages:
The choice of entity depends on circumstance of each case. Private Limited Company has lesser number of compliances requirements. Therefore, generally where there is no requirement of raising of finances through a public issue and the ownership is intended to be closely held by limited number of persons, Private Limited Company is the best choice.
The minimum paid up capital at the time of incorporation of a private limited company has to be Indian Rupees 1,00,000 (about United States Dollars 2,000). There is no upper limit on having the authorized capital and the paid up capital. It can be increased any time, by payment of additional stamp duty and registration fee.
The authorized capital is the capital limit authorized by the Registrar of Companies up to which the shares can be issued to the members / public, as the case may be. The paid up share capital is the paid portion of the capital subscribed by the shareholders.
An application in Form No. 1A needs to be filed with the Registrar of Companies (ROC) of the state in which the Registered Office of the proposed Company is to be situated. The application is required to be signed by one of the promoters. The details to be state in the said application are as follows:1. Four alternative names for the proposed company. (The name can be coined names from the objects of the proposed 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)2. Names and addresses of the promoters (Minimum 7 for a public company while 2 for private company).3. Authorized Capital of the proposed company.4. Main objects of the proposed company.5. Names of other group companies. On submitting the application, the ROC scrutinizes the same and sends the approval / objections in about 10 days to the applicant. On fulfilling of the objections a formal letter of name approval is issued.
On receipt of the name approval
letter from the ROC the MOA and the AOA are required to be
drafted. The MOA states the main, ancillary / subsidiary and
other objects of the proposed company. The AOA contains the
rules and procedures for the routine conduct of the proposed
company. It also states the authorized share capital of the
proposed company and the names of its first / permanent
directors. After the MOA and AOA are required to be stamped.
A stamp duty is required to be paid on the MOA and on the AOA. The stamp duty depends on the authorized share capital.
1. MOA and AOA - 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 for, etc.
2. Form No. 1 - This is a declaration to be executed on a non-judicial stamp paper of INR 20 by one of the directors of the proposed company or other specified persons such as Attorneys or Advocates, etc. stating that all the requirements of the incorporation have been complied with.
3. Form No. 18 - This is a form to be filed by one of the directors of the company informing the ROC the registered office of the proposed company.
4. Form No. 29 - This is a consent obtained from all the proposed directors of the proposed company to act as directors of the proposed company. (Not required in case of private company).
5.Form No. 32 - This is a form stating the fact of appointment of the proposed directors on the board of directors from the date of incorporation of the proposed company and is signed by one of the proposed directors.
6.Name approval letter in original.
7.Power of Attorney signed by all the subscribers of MOA 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.
8.Power of Attorney in case of a subscriber who has appointed another person to sign the MOA on his behalf.
9. Filing fees as may be applicable.
After the documents in FAQ 5 are filed, the ROC calls the attorney on a specific date for scrutiny and making the corrections in the MOA and AOA filed. On complying with the same, the certificate of incorporation is granted to the attorney.
On receipt of the certificate of incorporation, the public company has to complete certain other legal formalities such as a statutory meeting (within 6 months), statutory report, etc. On completion of the said formalities and on filing of the statutory report with the ROC the ROC issues the certification of commencement of business to the company. Thereafter, the Public Company can start the business operations. The Private Company can start its business immediately on incorporation.
You can give Power of Attorney to a person to sign the documents on your behalf. After the Company is incorporated, you can appoint Alternate Directors, to function on your behalf while you are not in India. But at least once, you should be in India within one month of the incorporation of the Company. There can be one meeting of Board of Directors during your stay in India and all other formalities including those of appointment of Alternate Directors can be complied with.
Foreign Investors Establishing Business in India
Foreign investors planning to incorporate in India are required to seek governmental approval before investing in India.
Some approvals are automatic, - RBI Approvals - though application is required for those approvals.
Special Permission - FIPB Approvals - could be obtained to invest over and above the regular percentage allowed.
See our FDI in India Sector wise Guide for more information on various conditions of investing in India.
Services Offered by Us
Madaan & Co. has helped foreign companies, including USA Companies, in setting up their operations in India. A careful tax planning is required before opening a subsidiary, branch, joint venture, project office or liaison office in India. Click here to Contact us for setting up company in India
Our lawyers include those admitted to bar in the United States of America and India. They have undertaken legal maters in the USA, India and Europe. They understand the multi-cultural and the multi-jurisdictional aspects of international business in this age of globalization. They include those educated at Harvard Law School, Harvard University in the USA and premier universities in India. They believe in high moral and legal ethics.
Contact us for:
- Incorporating in a company in India
- Opening a Branch Office
- Opening a Project Office
- Setting up Joint Ventures in India
- Setting up a subsidiary in India
- Drafting Agreements
- Negotiating Agreements
- Setting up Outsourcing in India
- Dispute Resolution