FAQ Section 8 Company

Meaning of non profit organisation(section 8 Company)

Any person or an association of persons intending to register a limited liability company for objects specified below can opt to apply for registration of Section 8 Company. The following have to be proved to the satisfaction of the Central Government that:

• its objects includes promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object;
• the company after incorporation intends to apply its profits, if any, or other income in promoting such objects only; and
• the company intends to prohibit the payment of any dividend to its members.

Registrars of Companies of respective jurisdictions are delegated with the powers of Central government to issue license to Section 8 Companies. A licence may be granted by the Central Government under Section 8 of the Act on such conditions and subject to such regulations as it thinks fit and those conditions and regulations shall be binding on the body to which the licence is granted.

 

Is it necessary that Section 8 Companies are to be incorporated as a limited company with share capital?

Section 8 Company may be incorporated as a company limited by shares or by Guarantee (with or without share capital).

 

Is it mandatory that the name of section 8 Company shall include the words like – Foundation, forum, association, federation, chamber, confederation, Council, electoral trust etc.?

Yes. As per rule 8(7) of the Companies (Incorporation) Rules, 2014, for the Companies under Section 8 of the Act, the name shall include the words foundation, Forum, Association, Federation, Chambers, Confederation, council, Electoral trust and the like etc. However, Section 8(1) permits the registration, under a licence granted by the Central Government, of associations not for profit with limited liability without being required to use the word “Limited’ or the words ‘Private Limited” after their names.

 

Can a one person company become a member of Section 8 Company?

No, Rule 3(6) of the Companies (Incorporation) Rules, 2014 prohibits one person company to invest in securities of any body corporate.

 

Can a company be treated as Section 8 Company as well as a small company provided that the company has not exceeded the thresholds prescribed for small companies under section 2(85)?

 No. As per proviso to section 2(85), section 2(85) does not apply to a Section 8 Company and accordingly, a Section 8 Company cannot be treated as a small company. Likewise, a small company on conversion to a Section 8 Company shall cease to be a small company.

 

Can a partnership firm or an Limited Liability Partnership become a member of Section 8 Company?

Yes, under the Companies Act, 2013, a Partnership firm or an LLP can become the member of Section 8 Company. The provisions of respective Acts need to be complied with by the partnership firm or LLP as the case may be.

 

Can a Trust become member of a Section 8 Company?

There is no restriction in the provisions of the Companies Act, 2013 for a registered Trust to become a member of Section 8 Company. In case of unregistered trusts, provisions of section 89 would be applicable.

 

Whether a Co-operative society can become subscriber/ member of a Section 8 Company?

In terms of section 8, any person or an association of persons intending to register a limited liability company for objects specified in section 8(1)(a), subject to the restrictions provided in section 8(1)(b) and (c), can opt to apply for registration of Section 8 Company.

The term “person” has not been defined in the Companies Act, 2013. Section 2(41) of the General Clauses Act, 1897 provides that “person” shall include any Company or association or body of individuals, whether incorporated or not. Section 11 of the Indian Contract Act, 1872 provides that every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is sound mind and is not disqualified from contracting by any law to which he is subject. Therefore a Co-operative society can be regarded as Person and thus capable of becoming subscriber of a company including Section 8 Company.

A non-profit making company licensed under Section 8 of the Companies Act,2013 can become a member of another company if it is authorised by its Memorandum of Association to invest into shares of the other company.

 

Type of section 8 company

A section 8 company, which is proposed to be registered with limited liability, may either be a public limited company or a private limited company or Specified IFSC Company.

 

Can a One Person Company (OPC) be incorporated as or convert into a Section 8 Company?

No. Rule 3 of the Companies (Incorporation) Rules, 2014 prohibits a one person company to be incorporated as section 8 company or to convert into a Section 8 Company.

 

Can section 8 companies be a holding company of another company?

Yes, section 8 company can promote another company and be a holding company of another company.

 

Whether a Section 8 Company can have objects incidental and ancillary to the attainment of the main objects?

Rule 19(2) of the Companies (Incorporation) Rules, 2014 provides that the memorandum of association of the Section 8 Company shall be in Form No.INC.13. Review of Form INC 13 clarifies that a memorandum of association of a Section 8 Company may inter-alia provide for the doing of all such other lawful things as considered necessary for the furtherance of the objects for which the company has been incorporated.

 

Whether an Articles of Association of a Section 8 Company can have entrenchment clause?

Yes, an Articles of Association of a Section 8 Company can have entrenchment clause in terms of provisions of section 5(3).

 

What is the procedure to get License of section8 company?

The powers under section 8 have been delegated to the Registrar of Companies by Notification No.1353(E), dated 21st May, 2014. Accordingly, the application in e-Form INC-12 for grant of licence will be made to the ROC. The application should be made in conformity with the procedure laid down in the Companies (Incorporation) Rules, 2014.

E-Form INC-12 has to be submitted with following attachments:

• Draft Memorandum of association (in the Form INC-13 to be attached with the Form SPICe-32);
• Draft Articles of association in the Form INC-31 (To be attached with the Form SPICe-32);
•  Declaration as per Form INC-14 (to be attached with the e-Form INC-12) by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that the draft memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with;
• If company is already in existence, then last one/two years accounts, balance sheet and report on the working of the association/company as submitted to the members of association/company;
• Assets and liabilities statements with their value as on a date not earlier than thirty days of making the application;
• Annual income and expenditure estimates for next three years;
• Declaration by each of the applicant(s) as per Form INC -15 (to be attach with the e-Form INC
• A copy of board/members resolution approving registration of company under section 8;
• Optional attachment, if any.

 

Is there any relaxation in stamp duty payment in incorporation of a Section 8 Company?

Stamp duty on memorandum & articles of association of Section 8 or on any increase in share capital is governed by Indian Stamp Act, 1899 as adopted by respective state or stamp act of respective state, as the case may be. Some of the states provide privileged rates for stamp duty on MOA/ AOA of Section 8 Companies or on increase in authorized share capital.

 

Is there is any relaxation in Stamp duty payment on issuance of share certificate by a Section 8 Company?

Stamp duty on issue of share certificates is governed by Indian Stamp Act, 1899 as adapted by respective state or stamp act of respective state, as the case may be. No relaxation of special rate of stamp duty has been provided by any of the state in respect of stamp duty payable on issue of share certificates by Section 8 Company.

 

Is there is any relaxation in stamp duty payment on transfer of shares of Section 8 Company?

Stamp duty on issue of share certificates is governed by Indian Stamp Act, 1899 and no relaxation of special rate of stamp duty has been provided stamp duty payment on transfer of shares. However, as in case of other Companies, no stamp duty is payable on transfer of shares of section 8 company also, if made in demat mode.

 

Whether a foreign Company can be registered as a Section 8 Company in India?

Section 2(42) of the Companies Act, 2013 defines the term “Foreign Company” and means any company or body corporate incorporated outside India which– (a) has a place of business in India whether by itself or through an agent, physically or through electronic mode; and (b) conducts any business activity in India in any other manner. Now since a Company or a body corporate incorporated outside India for doing not for profit activities, which has opened a branch/liason office in India, cannot fall in definition of a foreign company as business activity is missing. Therefore, such company cannot be termed as foreign company. However, subject to compliance of FEMA regulations, it can open branch/liason offices. Such not for profit companies or bodies corporate incorporated outside India can promote and register a Section 8 Company in India as a distinct entity.

 

Can Section 8 Companies receive contributions from overseas or non-residents?

 There are special requirements to be complied with under the Foreign Contribution and Regulation Act, 2010 before a Section 8 Company can receive any contributions or donations from overseas/outside India from non-residents. The provisions of the said Act are in addition to the provisions under the Companies Act.

 

Can a Section 8 Company alter its Memorandum of Association or Articles of Association by only passing a special resolution?

A Section 8 Company can alter the provisions of its Memorandum or articles by passing a special resolution, however such alteration requires the approval of the Registrar of Companies [vide MCA notification dated 21st May, 2014]. Further, if alteration in Memorandum or Articles results in conversion of Section 8 Company to any other kind of company, prior approval of Central Government is required. Such power is delegated to Regional Director [vide MCA notification dated 21st May, 2014].

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