Every company incorporated on and after 2nd November 2018 must apply for issuance of another certificate known as The Certificate of Commencement of Business by filing a declaration in Form INC-20A before starting any business or operation or even entering into any kind of agreement of commercial nature. The MCA has notified the new provision on 26th January 2019 which shall have retrospective effect to all companies incorporated on or after 2nd November 2018. This article is an attempt to put the new requirement in easy to understand language.
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The central government has issued an ordinance on 12th January 2019 and the same is published in the Gazette of India, Number 6, extraordinary, part II, among many amendments made to the Companies Act, 2013. One of the significant amendments made through the ordinance is the new requirement of filing a declaration in Form INC-20A before commencing the business operation of the company after incorporation. This new requirement is applicable to all companies incorporated on and after 2nd November 2018. The Ministry of Corporate Affairs has recently notified the eform INC-20A on 26th January 2019, and the same need to be filed within six months from the incorporation of the company.
The most important impact of this amendment to the companies’ act is on the understanding of the share subscription money resulting from the subscription to the MOA and AOA. To understand the impact, let’s understand how a company is incorporated in brief. To incorporate a company you are required to provide a specific amount as Authorised capital of the company, in the MOA and each shareholder of the company has to subscribe to the share capital of the company. The last page of the MOA is known as share subscription and every subscriber of the MOA is required to pay his share of capital to the company when it is called for by the board of directors.
However, after this very amendment, the treatment of the share subscription has changed substantially, now entire subscribed share capital of the company is required to be deposited into the bank account of the newly incorporated company, and thereafter a declaration in form INC-20A with the proof of the payment of share capital by the shareholder to the company bank account. After approval of the Form INC-20A, a Certificate of Commencement of Business is issued, and only after issuance of this certificate, the company can do any business activity. Though the time prescribed for filing the form INC-20A is 180 days, a company incorporated after 2nd November 2018 must file it ASAP and must not enter into any transaction or business activity. In other words, any agreement, sale, or purchase without obtaining the certificate of commencement of business shall be an illegal activity.
This requirement is a very stringent provision with a severe punishment in case of any non-compliance. for non-filing the form INC-20A or for commencing of any business activity without obtaining the certificate of commencement of business, the company is punishable with a fine of Rs. 50,000 and every officer in default shall be punishable with a fine of Rs. 1000/- per day for each day of default, however, the maximum punishment cannot be more than Rs. 1,00,000/-
It has been further provided that in case the company which has been incorporated after the 2nd November 2018 does not file the required declaration with the proof of collecting and depositing the share subscription money to the credit of the Company shall be closed by the ROC and prosecution may be started against all key managerial personnel including all directors and the promoters of the company.
The ministry of corporate affairs has issued a notification on 26th January 2019 having the retrospective operation on all companies incorporated on and after 2nd November 2018 and released the Form INC-20A on the mca portal for filing the same with the ROC. After coming to the effect of this amendment a company can not commence its business operation without obtaining the certificate of commencement of business, which can be obtained only after the company has done the following activity in form number INC-20A
- Open Current Bank Account
- Collect Share Subscription Money from the shareholders
- The share subscription should be deposited in the company through banking channel
- The eform shall be filed with the digital signature of any of the director
- The eform shall be attested by a practising CA, CS or CMA
FAQ on Certificate of Commencement of Business
Q1. What is e-form INC-20A?
The e-form INC-20A is the prescribed form for making a declaration as required under section 10A of the Companies Act, 2013, as inserted via the Companies Amendment Ordinance, 2019. The Ministry of Corporate Affairs has come up with Companies (Amendment) Ordinance 2018 by which it has been directed that all the companies which are registered after the Companies (Amendment) Ordinance, 2018 i.e after 2nd November 2018 and holding a share capital are required to file the eForm INC-20 to obtain Commencement of Business Certificate. It has to be filed by all the specified companies before they commence any business or exercise any borrowing powers.
Q2. What is the time limit for filing the eform INC-20A?
180 days from the date of incorporation of the company in case the same is on or after 2nd November 2018. For example: If a company is registered on 2nd November 2018 then the last date of filing the Form INC-20A shall be 2nd May 2019.
Q3. Can I file the Form INC-20A even when I miss the deadline of 180 Days?
As per MCA, If a company does not file the declaration in form INC-20A within 180 days of its incorporation then the status of the company shall be changed to “Struck Off(Defunct)”. However, the company may be revived after making an application to the National Company Law Tribunal (NCLT). If the company is ordered to be revived or in case the default has taken place but the ROC has not struck down the company yet the Form INC-20A can still be filed with an additional government fee for delayed filing to the MCA.
Table of the additional fee as per rule:
Table of the additional fee as per rule:
|Sl. No||Delay||Additional Fee as times of Normal filing fee|
|1.||Delay up to 30 Days||2 Times|
|2.||More than 30 days and up to 60 days||4 Times|
|3.||More than 60 days and up to 90 days||6 Times|
|4.||More than 90 days and up to 180 days||10 Times|
|5.||More than 180 days||12 Times|
Q4. What is the penalty of non-filing?
Penalties have been prescribed for both the Company as well as its Directors. The company in default shall be liable to pay a sum of Rs. 50,000, while every officer in default, shall pay Rs. 1000 per day for each day of default, however, the penalty shall not be more than Rs. 1,00,000.
Q5. Why company need to file eform -INC-20A?
If a company does not file eFORM INC-20A it cannot commence its business, further, it cannot borrow any funds, Besides, it shall result in severe consequences in form of closing down the company by removing its name from the Register of Companies.
Q6. What are the documents required for filing the eform INC-20A?
Though only the proof of depositing the share capital amount from the subscribers of MOA in the bank account of the company is required to be attached with the eform INC-20A, however, we shall refer following documents before filing the form INC-20A
- Certificate of Incorporation (COI) to confirm the date of incorporation
- MOA and AOA of the Company – To ascertain the Names of Subscribers
- Proof of payment of the share capital by the shareholders (Company Bank A/c)
- Spice 32 Form to check if the company has filed documents of registered address of the company
- In case a company is incorporated with communication address then it is required to file registered address proof in INC 22 within 30 days of incorporation.