Types and Registration of Prospectus

It means a formal document that a Public Company issues to invite offers from public for subscribing its shares. It includes all the material information related to shares that a Company offers to the public. Furthermore, it usually help the investors to take investment decisions.

The company provides prospectus with capital raising intention. Prospectus helps the investors to make a well-informed decision because of the prospectus all the required information of the securities which are offered to the public for sale.

Whenever the company issues the prospectus, the company must file it with the regulator. The prospectus includes the details of the company’s business, financial statements.

  • To notify the public of the issue.
  • To put the company on record with regards to the terms of the issue and allotment process.
  • To establish accountability on the part of the directors and promoters of the company.

Types of prospectus

According to Companies Act 2013, there are four types of prospectus.

Deemed Prospectus: Deemed prospectus has mentioned under Companies Act, 2013 Section 25 (1). When a company allows or agrees to allot any securities of the company, the document is considered as a deemed prospectus via which the offer is made to investors. Any document which offers the sale of securities to the public is deemed to be a prospectus by implication of law.

Shelf prospectus: Shelf prospectus is stated under section 31 of the Companies Act, 2013. Shelf prospectus is issued when a company or any public financial institution offers one or more securities to the public. A company shall provide a validity period of the prospectus, which should not be more than one year. The validity period starts with the commencement of the first offer. There is no need for a prospectus on further offers. The organization must provide an information memorandum when filing the shelf prospectus.

Red Herring Prospectus: Red herring prospectus does not contain all information about the prices of securities offered and the number of securities to be issued. According to the act, the firm should issue this prospectus to the registrar at least three before the opening of the offer and subscription list.

Abridged Prospectus: Abridged prospectus is a memorandum, containing all salient features of the prospectus as specified by SEBI. This type of prospectus includes all the information in brief, which gives a summary to the investor to make further decisions. A company cannot issue an application form for the purchase of securities unless an abridged prospectus accompanies such a form.

Registration of Prospectus

(1) No prospectus shall be issued by or on behalf of a company or in relation to an intended company unless, on or before the date of its publication, there has been delivered to the Registrar for registration a copy thereof signed by every person who is named therein as a director or proposed director of the company or by his agent authorized in writing, and having endorsed thereon or attached thereto:

(a) Any consent to the issue of the prospectus required by section 58 from any person as an expert; and

(b) In the case of a prospectus issued generally, also:

(i) a copy of every contract required by clause 16 of Schedule II to be specified in the prospectus, or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof ; and

(ii) Where the persons making any report required by Part II of that Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in clause 32 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.

(2) Every prospectus to which sub-section (1) applies shall, on the face of it,

(a) State that a copy has been delivered for registration as required by this section ; and

(b) Specify any documents required by this section to be endorsed on or attached to the copy so delivered, or refer to statements included in the prospectus which specify those documents.

(3) The Registrar shall not register a prospectus unless the requirements of sections 55, 56, 57 and 58 and sub-sections (1) and (2) of this section have been complied with and the prospectus is accompanied by the consent in writing of the person, if any, named therein as the auditor, legal adviser, attorney, solicitor, banker or broker of the company or intended company, to act in that capacity.

(4) No prospectus shall be issued more than ninety days after the date on which a copy thereof is delivered for registration, and if a prospectus is so issued, it shall be deemed to be a prospectus a copy of which has not been delivered under this section to the Registrar.

(5) If a prospectus is issued without a copy thereof being delivered under this section to the Registrar or without the copy so delivered having endorsed thereon or attached thereto the required consent or documents, the company, and every person who is knowingly a party to the issue of the prospectus, shall be punishable with fine which may extend to fifty thousand rupees.

Doctrine of Lifting the veil of corporate entity

The Companies Act, 2013 clarifies that a company is a separate entity distinct from its members. But practically, it is an association of persons who are the beneficial owners of the company and its corporate assets. This fiction is created by a veil termed the corporate veil.

Here, lifting the corporate veil under the Companies Act, 2013 means ignoring that a company is a separate legal entity and has a corporate personality. Lifting of corporate veil as per Companies Act, 2013 ignores the separate identity of the company and looks back at the true owners who are in control of the company.

The separate personality is a regulatory advantage, and it must be used for a lawful purpose only. Whenever and wherever a fraudulent use is made of the legal establishment, the individuals will not be permitted to hide behind the curtain of corporate personality.

The concerned authority will break this company’s shell and sue the individuals who have committed such an offence. This lifting of the curtain is called lifting the corporate veil under the Companies Act, 2013.

Corporate Veil:

A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company’s debts and other obligations.

Lifting Of Corporate Veil:

At times it may happen that the corporate personality of the company is used to commit frauds and improper or illegal acts. Since an artificial person is not capable of doing anything illegal or fraudulent, the façade of corporate personality might have to be removed to identify the persons who are really guilty. This is known as ‘lifting of corporate veil’.

It refers to the situation where a shareholder is held liable for its corporation’s debts despite the rule of limited liability and/or separate personality. The veil doctrine is invoked when shareholders blur the distinction between the corporation and the shareholders. A company or corporation can only act through human agents that compose it. As a result, there are two main ways through which a company becomes liable in company or corporate law: firstly through direct liability (for direct infringement) and secondly through secondary liability (for acts of its human agents acting in the course of their employment).

There are two existing theories for the lifting of the corporate veil. The first is the “alter-ego” or other self-theory and the other is the “instrumentality” theory.

The alter-ego theory considers if there is in distinctive nature of the boundaries between the corporation and its shareholders.

The instrumentality theory on the other hand examines the use of a corporation by its owners in ways that benefit the owner rather than the corporation. It is up to the court to decide on which theory to apply or make a combination of the two doctrines.

The basis on which Corporate Veil is Lifted under Companies Act,2013

Misstatement in Prospectus

In a case where the company’s prospectus is misrepresented, the company and every director, promoter, and every other individual, who authorized such issue of prospectus shall be liable to compensate the loss to every person who subscribed for shares on the faith of misstatement.

Also, these individuals may be punished with a jail term for duration of not less than six months. This duration may be extended to ten years. The concerned company and person shall also be liable to a fine that shall not be less than the sum involved in the fraud but may extend to three times the amount involved in the fraud.

Misdescription of Name

As per the Companies Rule, 2014, a company shall have its name printed on every official document, including (hundis, promissory notes, BOE, and such other documents) as may be mentioned.

Thus, where a company’s officer signs on behalf of the company any contract, BOE, Hundi, promissory note or Cheque or order for money, that individual shall be liable to the holder if the name of the company is not properly mentioned.

Fraudulent conduct

In case of winding up of a company, it comes out that any business has been carried on with intent to cheat the creditors or any other individual, or for any illicit purpose, if the Tribunal thinks it proper so to do, be directed in person liable without limitation to obligation for all or any debts or other obligations of the company.

Liability under the fraudulent conduct may be imposed if it is proved that the company’s business has been carried on misguiding the creditors.

Ultra-Vires Acts

Directors and other officers of a company will be held liable for all those acts they have performed on the company’s behalf if the same is ultra vires the company.

Failure to return the application Money

In case of Public Issue, if minimum subscription, as per the prospectus, has not been received within thirty days of the issue of prospectus or such other period as may be mentioned, the application money shall be returned within fifteen days from the closure of the issue.

However, suppose any the application money is not so repaid within such specified time. In that case, the directors/officers of the company shall jointly and severally be liable to pay that money with 15% per annum.

Additionally, the defaulter company and its officer shall be liable for a penalty of 1000rs/day during which such default continues or Rs. 100000, whichever is less.

Under other Statues:

Apart from the Companies Act, 2013, the directors & other officers of the company may be held personally accountable under the provisions of other statutes. For Instance, under the Income-tax Act, 1962, where any private company is wound-up and if tax arrears in respect of any income of any previous year cannot be recovered, every individual who was director of that company during the relevant preceding year shall be jointly and severally accountable for payment of tax.

Under Judicial Interpretation

While initially the court, based on the principle of the separate entity as well as a district corporate persona, refused to lift the veil of corporate governance, However, due to the rise of corporations and the ever-growing conflict between corporations and their different stakeholders, courts have taken a more pragmatic strategy and have lifted the veil of corporate governance.

It isn’t easy to record every court decision in which the veil was lifted. However, there are various circumstances where the veil of corporate character can be taken off, and the people who are behind the corporate entities could be found out and punished.

  • Improper conduct and Prevention of Fraud.
  • Formation of the Subsidiary company to act as Agent.
  • Economic offence
  • Revenue Protection
  • The company used it for illegal purposes.
  • Company ignoring welfare legislations.
  • Company acting a mere fraud.

Book Building Procedure for Issue of Shares

Book building is a price discovery mechanism that is used in the stock markets while pricing securities for the first time. When shares are being offered for sale in an IPO, it can either be done at a fixed price. However, if the company is not sure about the exact price at which to market its shares, it can decide a price range instead of an exact figure. This process of discovering the price by providing the investors with a price range and then asking them to bid on it is called the book building process. It is considered to be one of the most efficient mechanisms of pricing securities in the primary market. This is the preferred method which is recommended by all major stock exchanges and as a result is followed in all major developed countries in the world.

Book Building Process:

  • Appointment of Investment Banker:

The first step starts with appointing the lead investment banker. The lead investment banker conducts due diligence. They propose the size of the capital issue that must be conducted by the company. Then they also propose a price band for the shares to be sold. If the management agrees with the propositions of the investment banker, the prospectus is issued with the price range as suggested by the investment banker. The lower end of the price range is known as the floor price whereas the higher end is known as the ceiling price. The final price at which securities are indeed offered for sale after the entire book building process is called the cut-off price.

  • Collecting Bids:

Investors in the market are requested to bid to buy the shares. They are requested to bid the number of shares that they are willing to buy at varying price levels. These bids along with the application money are supposed to be submitted to the investment bankers. It must be noted that it is not a single investment banker who is engaged in the collection of bids. Rather, the lead investment banker can appoint sub-agents to tap into their network especially for receiving the bids from a larger group of individuals.

  • Price Discovery:

Once all the bids have been aggregated by the lead investment banker, they begin the process of price discovery. The final price chosen in simply the weighted average of all the bids that have been received by the investment banker. This price is declared as the cut-off price. For any issue which has received substantial publicity and which is being anticipated by the public, the ceiling price is usually the cut-off price.

  • Publicizing:

In the interest of transparency, stock exchanges all over the world require that companies make public the details of the bids that were received by them. It is the lead investment banker’s duty to run advertisements containing the details of the bids received for the purchase of shares for a given period of time (let’s say a week). The regulators in many markets are also entitled to physically verify the bid applications if they wish to.

  • Settlement:

The application amount received from the various bidders has to be adjusted and shares have to be allotted. For instance, if a bidder has bid a lower price than the cut-off price then a call letter has to be sent asking for the balance money to be paid. On the other hand, if a bidder has bid a higher price than the cut-off, a refund cheque needs to be processed for them. The settlement process ensures that only the cut-off amount is collected from the investors in lieu of the shares sold to them.

Partial Book Building

Partial book building is another variation of the book building process. In this process, instead of inviting bids from the general population, investment bankers invite bids from certain leading institutions. Based on their bids, a weighted average of the prices is created and cut-off price is decided. This cut-off price is then offered to the retail investors as a fixed price. Therefore, the bidding only happens at an institutional level and not at a retail level.

This is also an efficient mechanism to discover prices. Also the cost and complications involved in conducting a partial book building are substantially low.

First of all, the book building process brings flexibility to the pricing of IPO’s. Prior to the introduction of book building, a lot of IPO’s were either underpriced or overpriced. This created problems because if the issue was underpriced, the company was losing possible capital. On the other hand, if the issue was overpriced it would not be fully subscribed. In fact, if it was subscribed below a given percentage, the issue of securities had to be cancelled and the substantial costs incurred over the issue would simply have to be written off. With the introduction of book building process, such events no longer happen and the primary market functions more efficiently.

Other Subtypes of Book Building

The following are subtypes of book building:

  • Accelerated Book Building

The companies can use an accelerated book-building process to acquire quick capital market. That can be the case when a company cannot finance its short-term project via debt financing. So, the issuing company contacts several investment banks that can act as underwriters the evening before the intended placement. Under this process, the offer period is open only for a day or two days, and you have no time for marketing for an issue. So, instead, the underwriter overnight contacts their networks and details the current topic to institutional investors. If this investor finds this issue interesting, then allotment happens overnight.

  • Partial Book Building

As the partial book building says, that issue book is built partially, where the investment banker only invites bids from the selected investors. Based on their bids, they take the weighted average of the prices to finalize the cut-off price. Then other investors, such as retail investors, take this cut-off price as a fixed price. So, the bidding happens with a selected group of investors under the partial book-building process.

Advantages of Book Building

  • The most efficient way to price the share in the IPO market.
  • The share price is finalized by investors’ aggregate demand, not by the fixed price set by the company management.

Disadvantages of Book Building

  • High costs are involved in the book-building process compared to the fixed-price mechanism.
  • The period is also more in the book booking process than the fixed-price mechanism.

Subscription of Shares, Minimum Subscription, Over-Subscription

Subscription of shares refers to the process where investors apply for shares issued by a company. When a company offers shares to the public through an Initial Public Offering (IPO) or other methods, investors submit applications to purchase them. Based on demand, the company may receive full, over, or under-subscription. Full subscription means the exact number of shares offered is applied for, over-subscription occurs when demand exceeds supply, and under-subscription happens when applications are fewer than the issued shares. Companies allocate shares based on predefined criteria, ensuring fair distribution among investors while adhering to regulatory guidelines.

Minimum Subscription of Shares:

The minimum subscription of shares refers to the minimum number of shares that a company must sell to raise a certain amount of capital to proceed with an issue, whether through an Initial Public Offering (IPO), Follow-on Public Offering (FPO), or any other public offering. This minimum subscription amount is typically defined in the prospectus and is a regulatory requirement, ensuring that the company has sufficient investor interest to justify proceeding with the issue.

In India, for instance, the minimum subscription requirement for public offerings is usually 90% of the total issue size. If the company fails to achieve this minimum subscription level, the issue is considered unsuccessful, and the funds collected (if any) must be refunded to the investors. This safeguard protects investors from getting involved in companies that may lack sufficient investor confidence or face difficulties in raising the required capital.

The concept of minimum subscription ensures that the company has a strong foundation of capital to fund its operations or expansion. It also prevents situations where the company might not have enough funds to cover operational or project expenses, thus providing a level of financial security.

Moreover, achieving minimum subscription enhances the credibility of the company in the eyes of investors and regulators, as it demonstrates market confidence in its business model and financial stability.

Over-Subscription of Shares:

Over-subscription occurs when the demand for shares in an initial public offering (IPO) or any other public share issue exceeds the number of shares offered by the company. This situation indicates high investor interest in the company’s shares, often due to favorable market conditions, strong company performance, or investor confidence in the business’s future prospects.

When an issue is over-subscribed, investors apply for more shares than what is available. For example, if a company issues 1,00,000 shares, and investors apply for 2,00,000 shares, the issue is considered over-subscribed by 100%. This scenario usually results in the company having to make decisions on how to allocate shares fairly among investors.

In cases of over-subscription, companies may use various methods to allocate shares, such as:

  1. Pro-rata Basis: Shares are allocated in proportion to the number of shares applied for by each investor. If an investor applied for 100 shares and the issue was over-subscribed by 2:1, they would receive only 50 shares.

  2. Lottery System: In some cases, especially when demand far exceeds supply, a lottery system is used to randomly allocate shares to applicants.

  3. First-Come, First-Served: Shares may be allotted based on the order in which applications are received, with early applications being given priority.

Company Law and Administration Bangalore University B.com 3rd Semester NEP Notes

Unit 1 Indian Companies Act 2013 [Book]
Introduction to Company Law, Evolution VIEW VIEW
Nature of Joint Stock Company VIEW VIEW
Overview of Companies Act 2013, Objectives, Significance of Companies Act 2013 VIEW
Body Corporate Meaning, Features VIEW
Classification of Companies VIEW
Distinction between Private Company and Public Company VIEW
Doctrine of Lifting the veil of Corporate entity VIEW
CSR Meaning, Scope VIEW
Provisions for CSR Activities under Schedule VII of the Companies Act 2013 VIEW

 

Unit 2 Formation of a New Company [Book]
Stages in Formation of a company as per Companies Act 2013 VIEW
Documents required for the formation of company VIEW
Memorandum of Association Meaning, Definition, Purpose and Content of Memorandum of Association VIEW
Articles of Association: Meaning, Definition, Contents and Alteration of Articles of Association VIEW
Distinction between Memorandum of Association and Articles of Association VIEW
Doctrine of Ultravires VIEW
Doctrine of Constructive notice and Doctrine of Indoor Management VIEW
Prospectus Meaning, Definition, Contents VIEW
Types and Registration of Prospectus VIEW
Statement in lieu VIEW
Misstatement in prospectus and its consequences VIEW

 

Unit 3 Capital Structure and Accounts of Companies [Book]
Share Capital Meaning, Definition VIEW
Types of Share Capital VIEW VIEW
Rules Regarding Issue of Shares VIEW
Distinction between Preference shares and equity shares VIEW
Debenture Meaning, Definition, Types VIEW
Rules Regarding Issue of Debenture VIEW VIEW VIEW
Distinction between Share and Debenture VIEW
Accounts of companies: Statutory books and Financial Statements VIEW

 

Unit 4 Administrative and Managerial role of a Company [Book]
Overview of Administrative and Managerial role, Key Managerial Personnel: VIEW
Director Meaning, Definition, Director Identification Number, Position, Rights VIEW
Director Liabilities VIEW
Director Duties, Power VIEW
Director Qualification, Disqualification VIEW
Director Appointment, Removal and Resignation of director VIEW
Meaning and role of Managing Director VIEW
Whole Time Directors VIEW
C-suite Executives, CEO, CFO, COO, CTO, CKO, CRO and CIO VIEW
Resident Director, Independent Director VIEW
Women Director VIEW
Company Secretary Meaning, Definition, Appointment of Company Secretary, Functions of CS, Duties and Responsibilities VIEW
VIEW
Audit Committee: Meaning and Functions of Audit Committee VIEW
VIEW

 

Unit 5 Corporate Meeting [Book]
Introduction to Corporate Meeting Meaning, Definitions and Types VIEW
VIEW
Proceedings under Section 118 of the Companies Act 2013 VIEW
Requisite of Valid Meeting:
Notice VIEW VIEW
Agenda VIEW
Chairman VIEW VIEW
Quorum VIEW
Proxy VIEW
Resolutions VIEW
Minutes VIEW
Postal Ballot, E- voting VIEW
Video Conferencing VIEW
Board of Directors (BODs) Meaning, Definitions, Board Meeting, Committee Meeting VIEW
Meeting of Board of Directors (BODs) VIEW
Winding Up of Company Meaning, Definition and Modes of Winding up VIEW
Official Liquidator Meaning, Powers and Duties VIEW
Consequences of Winding up of a Company VIEW

Corporate Accounting Bangalore University B.com 3rd Semester NEP Notes

Unit 1 Issue of Shares [Book]
Shares Introduction, Meaning, features VIEW
Types of shares VIEW
Issue of shares VIEW VIEW
Subscription of shares, Minimum subscription, Over subscription VIEW
Pro-Rata allotment of Shares VIEW
Book Building procedure for issue of shares VIEW
Problems related to Journal entries on issue of shares at par, premium and discount VIEW
Unit 2 Underwriting of Shares [Book]
Introduction, Meaning and Need for underwriting VIEW
Advantages of Underwriting VIEW
SEBI Regulations regarding Underwriting VIEW
Underwriting Agreement VIEW
Underwriting Commission VIEW
Underwriter, Functions of Underwriter VIEW
Types of Underwriting VIEW
Marked and Unmarked Applications VIEW
Problems on determination of Liability of Underwriters VIEW
Underwriting Process VIEW
Unit 3 Valuation of Goodwill [Book]
Meaning, Circumstances, Factors of Valuation of Goodwill VIEW
Methods of Valuation of Goodwill:
Average Profit Method of Valuation of Goodwill VIEW
Super Profit Method of Valuation of Goodwill VIEW
Capitalization of Super Profit average Profit Method of Valuation of Goodwill VIEW
Annuity Method of Valuation of Goodwill VIEW
Capitalization of Profit Method VIEW
Annuity Method VIEW
Brand Meaning and features VIEW VIEW
Factors influencing value of brand VIEW
Circumstances of valuation of brand VIEW
Intellectual Property Rights (IPR): Meaning and features VIEW
Factors influencing value of IPR VIEW
Circumstances of valuation of IPR VIEW
Patents Meaning and features VIEW VIEW
Factors influencing value of patents VIEW
Circumstances of valuation of patent VIEW
Unit 4 Valuation of Shares [Book]
Meaning, Need for Valuation of Shares VIEW
Factors Affecting Valuation of Shares VIEW
Methods of Valuation:
Intrinsic Value Method of Shares VIEW
Yield Method of Shares VIEW
Earning Capacity Method of Shares VIEW
Fair Value of shares VIEW
Rights Issue VIEW
Valuation of Rights Issue VIEW
Valuation of Share Warrant VIEW
Unit 5 Company Final Accounts [Book]
Statutory Provisions regarding preparation of Company Final Accounts VIEW
Treatment of Special Items VIEW
Tax deducted at source VIEW
Advance payment of Tax VIEW
Provision for Tax VIEW
Depreciation VIEW
Interest on debentures VIEW
Dividends VIEW
Rules regarding payment of dividends VIEW
Transfer to Reserves VIEW
Preparation of Profit and Loss Account and Balance Sheet in vertical form VIEW

Director General of Employment and Training

The organization primarily looks after the operation of employment exchanges, industrial training institutes, vocational guidance programme and some other institutions. The activities of the directorate are essentially governed by the policies, standards and procedures set by the central directorate general, employment and training. Other activities of the organization include employment market information, vocational rehabilitation centers, and training of handicapped groups such as women and physically handicapped. The training wing of the department also looks after the implementation of the apprentices act, 1961. Generally, the directorate functions independently of the organizing of labour commissioner.

Director General of Factory Advice Service

The office of the Chief Adviser of factories, which is now called Directorate General, Factory Advice Service and Labour Institutes, was setup in 1945 with the objective of advising Central and State Governments on administration of the Factories Act and coordinating the factory inspection services in the States. The Directorate General, Factory Advice and Labour Institutes (DGFASLI) comprises:

  • Headquarters situated in Mumbai
  • Central Labour Institute in Mumbai
  • Regional Labour Institutes in Chennai, Kanpur, Kolkata and Faridabad.

The DGFASLI is an attached office of the Ministry of Labour & Employment, Government of India and serves as a technical arm to assist the Ministry in formulating national policies on occupational safety and health in factories and docks. It also advises factories on various problems concerning safety, health, efficiency and well – being of the persons at work places.

Objectives of DGFASLI

  • To provide technical advice and service to the Central and State Governments, and workplaces including factories and ports on matters related to safety, health and welfare of workers.
  • To develop legislations, standards, guidelines and codes of practices consistent with international instruments/standards on Safety, Health and Environment at workplaces.
  • To conduct studies, surveys and audits in the field of Occupational Safety and Health (OSH)
  • To enforce and promote Safety, Health and Environment in major ports in India.
  • To become a national repository of information on OSH and to promote OSH at workplaces.
  • To conduct seminars, workshops and training programmes on OSH
  • To encourage and provide best practices in the field of OSH.
  • To establish and develop research and development in the area of OSH and risk management.
  • To operate Award Schemes such as PMSA, VRP and NSA

Procedures of Recording Shares

The share capital of a company is the number of funds that a company can raise by the allotment of shares of its company but not exceeding the maximum amount mentioned in the memorandum of the company. When a company proposes to increase its subscribed capital by further issue of shares, then it can either issue equity or preference shares through the rights issue, preferential allotment or private placement of shares.

However, Article of Association of the Company must not restrict the right to make such allotment and also the authorise capital of the company must have the limit to allot the required shares. The procedure for allotment of shares can be time-consuming with the need to meet compliance at every step. You can avail affordable plans offered by Provenience to complete the process with ease.

Pursuant to the provisions of Section 42 & section 62 of the Companies Act, 2013, and the rules made thereunder, shares can be issued on the basis of Rights Issue, Private Placement & Preferential Allotment.

Under Right Issue, with the approval of the Board, shares are issued to the existing shareholders of the Company in the proportion of their current existing shareholding by issuing a Letter of Offer in this regard. The offer shall be open for a period not less than 15 days & not exceeding 30 days along with the right of renunciation. This offer period can be reduced in case of a Private Company with the consent of ninety percent, of the members of the Company. The offer letter shall be dispatched through registered post or speed post or through electronic mode or courier or any other mode having proof of delivery to all the existing shareholders at least three days before the opening of the issue.

Private placement of shares is governed by Section 42 of the Companies Act, 2013 read with rules framed thereunder. With the approval of the members via Special Resolution, Shares are allotted to a selected group of persons by the issue of Private Placement Offer Letter (PPOL) which does not carry any right of renunciation. The subscription money must be paid either by cheque or demand draft or other banking channel and not by cash and be kept in a separate bank account in a scheduled bank. An offer or invitation to subscribe securities under private placement shall not be made to persons more than two hundred in the aggregate in a financial year. A complete record of private placement offers shall be prepared in Form PAS-5.

Whereas, Preferential allotment refers to the allotment to any person being an existing shareholder or an outsider, either for cash or for a consideration other than cash. The price of such shares shall be determined by the Valuation Report. Rest of the practical procedure for the preferential allotment of shares is more or less similar to that of private placement.

Statutory obligation, Legal Procedure for establishment of NGO, Online & Offline, NGO Registration process, Documentation, Eligibility to start an NGO

Different types of NGO Laws in India

The following laws would be applicable for NGO registration in India:

Trust: It is a public charitable institution registered under the Charity Commissioner’s office having jurisdiction over the state. Maharashtra has adopted the Bombay Public Trust Act, 1950, which has become a model for the various other states. The law that regulates trusts are the Indian Trusts Act, 1882.

Societies: According to the Societies Registration Act, 1860, states have adopted their version from the model Societies Act, 1860. A society is considered as an independent form of organization. It has broad membership, which elects a governing body periodically for managing the affairs of the society. The body is accountable to members. There are multiple types of societies that may be registered under the Act which includes:

  • Charitable societies;
  • Societies which are established for the promotion of science, literature, or fine arts, education; and
  • Public Art Museums, and galleries, and certain other types of museums.

Company: A Company has been described under the Companies Act, 2013. The Act permits “Section 8 companies” to be formed. According to the Act, Section 8 Companies are those which are formed for the purpose of art, religion, charity, and other useful objects. Internal governance of Section 8 Company is similar to that of a society. The members of the committee or governing council are elected by the members of the Charitable Company. A section 8 company can be dissolved. The registration process takes time and requires the memorandum of association and articles of association that has to be submitted with the ROC (registrar of companies).

Trade Union: According to the Trade Union Act, 1926, a Trade Union is defined as temporary or permanent combination formed to regulate and control the relations of employees and employers.

Multi-State Co-operative Societies: The Multi-State Co-operative Societies Act, 2002 has substituted the previous Act of 1984. The Act provides for the compliance of both primary and federal co-operatives.

Legal compliances of NGO

There are various legal compliances of the NGO are as follows:

  • Permanent Account Number (PAN): This is a unique alphanumeric combination issued to all the juristic entities- identifiable under the Income Tax Act, 1961. The PAN number is used as the national identification number.
  • Tax Deduction Number (TAN): It is the Tax Deduction and Collection Account Number. It is a ten digit alpha-numeric number required to be obtained by all the individuals who are responsible for deducting or collecting tax (TDS) at source. The TAN number is required to be quoted at the following places:
  1. A challan depositing the tax so deducted,
  2. A certificate issued against the tax deducted,
  3. All returns furnished in respect of the tax deducted at source, etc.

Legal Procedure for establishment of NGO, Online & Offline

Non-Governmental Organization (NGO) is an entity that works for charitable purposes. NGO is known as a not-for-profit making organization that works towards the promotion of arts, science, sports, education, research, social welfare, religion, charity, and more. NGOs in India are of various types which are registered under Trust Act, Society Registrations Act, or the Companies Act.

NGO is registered in the form of Section 8 Company under the Companies Act, 2013. Companies registered under this act are all not-for-profit and charitable trusts. The only difference between a trust or society and NGO is that the latter is registered under the Ministry of Corporate Affairs (MCA).

Before Applying for NGO Registration

Obtain Digital Signature Certificate (DSC)

Proposed directors are supposed to provide Digital Signatures, as the registration forms are to be digitally signed before filing the form online. Certifying agencies under the Government of India issue Digital Signature Certificate (DSC). Applicants need to obtain either Class 2 or Class 3 category of DSC. The fees for obtaining DSC vary and depend on the certifying agency.

Apply for Director Identification Number (DIN)

Applicants are required to apply for a DIN for the proposed directors of the company. Filling of application Form DIR-3 helps in the allotment of DIN. Scanned documents like self-attested copies of PAN, identity, and address proof of directors are to be submitted along with the application form. The application form can be submitted online on the Ministry of Corporate Affairs (MCA) portal. The documents are required to be attested by a practicing chartered accountant, company secretary, or cost accountant.

Steps to Register as an NGO

Step 1: The applicant needs to obtain a DSC of the proposed Directors of an NGO. After a DSC is obtained, file Form DIR-3 with the ROC to get a DIN.

Documents to attach for DIN application:

    Identity and Address Proofs: Passport, Voter’s ID card, Aadhar card, electricity bill, driving license, PAN card, house tax receipt, business address proof, society’s name, etc.

Step 2: After the approval of DIR-3, the respective ROC will allot a DIN to the proposed directors.

Step 3: Next the applicant needs to file Form INC-1 with the ROC to apply for a company name. Preference of 6 names can be applied from which one would be allotted by ROC, depending on the availability.

Step 4: After the approval from ROC, file Form INC-12 to apply for a license for an NGO

Documents to attach with INC-12:

  • Declaration, as per Form INC-14 (Declaration from CA)
  • Declaration, as per Form INC-15
  • Draft Article of Association (AOA) and Memorandum of Association (MOA) as per Form INC-13
  • Estimated Income & Expenditure for next 3 years

Step 5: After the Form’s approval, the NGO license will be issued in Form INC-16.

Step 6: After the applicant has obtained the NGO license, he/she needs to file SPICE Form 32 with ROC for incorporation. After the ROC has checked and verified the documents, it issues a Certificate of Incorporation with a unique Corporate Identification Number (CIN).

Eligibility to Start an NGO

  • Minimum 2 directors required if NGO is to be incorporated as a private limited company
  • Minimum of 3 directors required, in case of incorporation as a public limited company
  • The maximum number of members is 200, in the case of a private limited company
  • No member limit in case of a public limited company
  • No fee is charged if registering as an NGO

Forms Required for NGO Registration

  • DIR 12 Appointments of Directors
  • DIR 2 Consent of Directors
  • DIR 3 Application to ROC to get DIN
  • INC 1 Business name approval
  • INC 12 Applications for License
  • INC 13 Memorandum of Association
  • INC 14 Declaration from a practicing CA
  • INC 15 Declaration from each person making the application
  • INC 16 License to incorporate as NGO
  • INC 22 Situation of Registered Office
  • INC 7 Applications for Company’s Incorporation
  • INC 8 Declarations
  • INC 9 Affidavit from each director and subscriber
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