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Initially as per sec 7(1)(c) of Companies Act, 2013 and rule 15 of Companies (Incorporation) Rules, 2014, for Private Limited company registration, every director was required to give an affidavit on 100/- stamp paper duly notarised by notary officer specifying that he is not being convicted of any offence, and he is not guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years.
But as per Companies (Incorporation) Third Amendment Rules, 2018 dated 27th July, 2018 now directors are not required to submit form INC-9 in form of Affidavit but simply they need to submit INC 9 declaration. The word “Affidavit” is substituted by the word “Declaration” pursuant to Companies (Incorporation) Third Amendment Rules, 2018. Hence INC-9 Filing without Affidavits is for Company Registration allowed.
Stakeholders are requested to please note that Filing of affidavits (from each of the subscribers to the memorandum and from persons named as the first directors, if any, in articles that he is not convicted of any offence in connection with promotion, formation or management of any company, or that he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years and that all documents filed with Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief) as per Section 7(1)(c ) of the Companies Act, 2013 read with rule 15 of the Companies (Incorporation) Third Amendment Rules has been dispensed with vide the Companies (Amendment) Act,2017- from 27th July 2018. Only INC 9 declaration by first subscriber(s) and director(s) in INC-9 is mandatory and affidavit is NOT required to be filed. Stakeholders may kindly note the above provisions while filing SPICe forms for incorporation of Companies.
Comparative Analysis for INC 9 Declaration and INC 9 Affidavit
Following is the comparative analysis for form INC-9 with respect to rule 15 of the Companies (Incorporation) Third Amendment Rules, 2018.
Rule 15 Before amendment of Companies (Incorporation) Third Amendment Rules, 2018. (INC 9 Affidavit)
“For the purposes of clause (c) of sub-section (1) of section 7, affidavit shall be submitted by each of the subscribers to the memorandum and each of the first directors named in the articles in Form No.INC.9”
Explanation: As per Rule 15 initially an affidavit was mandatory required to be given by all subscribers to the memorandum of Association duly notarised.
For rule 15, following shall be substituted, namely:
For the purposes of clause (c) of sub-section (1) of section 7, declaration shall be submitted by each subscribers to the memorandum and each of the first directors named in the articles in Form No.INC-9.” ;
(c) in Form No. INC-9, for the word ‘Affidavit’, the word ‘Declaration’ shall be substituted;
(d) in Form No. INC-32, (SPICe), in the List of Attachments, in item number 3, for the words and brackets “Affidavit and declaration by first subscriber(s) and director(s)” the words and brackets “Declaration by first subscriber(s) and director(s)” shall be substituted.
Explanation: As per Companies (Incorporation) Third Amendment Rules, 2018, now instead of Affidavits, the directors are simply required to submit a declaration in form INC-9. The word “Affidavit” is substituted by the word “Declaration” pursuant to Companies (Incorporation) Third Amendment Rules, 2018.
Conclusion: Now as per Companies (Incorporation) Third Amendment Rules, 2018, at time of Registration of company subscribers to the memorandum are not required to give any affidavits in INC 9 for specifying that he is not being convicted of any offence, and he is not guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years instead he is required to give a INC 9 declaration for the same.
[Pursuant to section 7(1)(c) of the Companies Act, 2013 and rule 15 of the Companies (Incorporation) Rules, 2014]
Name of the proposed company: XYZ Private Limited
I, Mr ABC, being the subscriber to the memorandum and named as first director in the articles, of the above named proposed company, hereby solemnly declare and affirm that:
Date:
Place:
