SECTION 8 COMPANY
Companies that are registered under Section 8 of the Companies Act, 2013 and are formed with an objective to promote the fields of trade, commerce, art, science, sports, education, research, religion or any other similar objectives. These Company utilized their profits towards the object of the company and hence no dividend is paid to the members.
According to Section 8(4)(ii) of the Companies Act 2013, Section 8 company can convert itself into any other Company after complying with the prescribed conditions in the Act.
PROCEDURE FOR CONVERSION OF SECTION 8 COMPANY INTO ANY OTHER KIND OF COMPANY:
As per Rule 21, 22 and 23 of the Companies (Incorporation) Rules 2014, For conversion of Section 8 Company into any other kind of Company, the procedure and requirements are enumerated below:
1. Firstly, pass a Special Resolution in the general meeting of its members for approval of such conversion.
A CTC of the resolution and Notice of General Meeting along with explanatory statement is required to be filed to ROC (Registrar of Companies) in Form MGT-14 within 30 days of passing the resolution.
2. Secondly, obtain a “No Objection Certificate”, from authorities such as IT Department, Charity Commissioner, Central or State government department, Municipal body or any other recognized authority, in case it has obtained special standing, privilege, benefit, exemption or grant from any of them.
3. Then, file an application to the Regional Director in Form INC 18 along with a copy to Registrar of Companies for conversion of Section 8 Company into any other kind of Company.
4. The company shall file all its Financial Statements, Annual Returns, and all such Returns as required by the Act upto the previous year of making the application to the Regional Director. In case, an application is filed and 3 months have elapsed from the preceding date of Financial year to which financial statement has been filed, then, a statement of financial position duly certified by the Chartered Accountant up to the date of not preceding 30 days of submitting the application needs to be attached.
5. A Declaration by the Board of Directors to the effect that no part of property or income of the Company has been directly or indirectly transferred or paid by manner of bonus or dividend to persons or members of the Company.
6. Certificate from a Practicing CA/CS/CMA certifying that Company has complied all the conditions relating to the conversion of Section 8 company as laid down in the Act.
7. The applicant shall publish a notice in the newspapers at his own expense within 7 days from the date of applying to the Regional Director. Copy of such notices shall simultaneously be sent to the Regional Director in Form INC 19.
8. Proof of serving of notice shall be sent to the below authorities by registered post or in-hand delivery:
1. Income Tax Officer or Chief Commissioner of Income Tax having jurisdiction over the Company
2. Charity Commissioner
3. Chief Secretary of the State in which the registered office of the Company is situated
4. Central or State government department in whose jurisdiction the Company is operating.
The above authorities may make representations, if any, to the Regional Director within 60 days from the receipt of the notice.
The Regional Director may upon his satisfaction approve the application of conversion of Section 8 company to any company of the other kind, subject to all prevailing terms and conditions as it may deem fit at the time of conversion.
POST CONVERSION REQUIREMENTS:
· The Company shall not claim any kind of special status, BonafIde exemptions or advantages that it must have used to enjoy in the virtue of being a Section 8 Company.
· In case the Company had possessed any real estate property from the government or any other authority at concessional rates, it may require to pay the difference between possession price and the Market price of property at the time of conversion in respect of that immovable property.
· Any accumulated profits or unutilized income from the previous year’s needs to be used to clear outstanding (if any), settle the liabilities of creditors, suppliers and service providers and then loans extended by promoters or any other members to whom any amount is due. Lastly, the unutilized balance shall be transferred to the IEPF within 30 days from the conversion of Section 8 Company.
· The Company get a valid opportunity to discuss with the Regional Director, before getting the application rejected or imposed any conditions on the said company.
Then, the Company must amend the Memorandum of Association & Articles of Association by passing a Special Resolution, on receipt of approval from the Regional Director of the Company.
The Company shall, thereafter filed a certified true copy of the approved application to the Regional Director within 30 days in Form INC 20 along with the mentioned fees and obtain a fresh Certificate of Incorporation.
Consequently, the License granted under Section 8 shall be permanently revoked and the Company is eligible to change their name and status.