Tag Archives: MCA

Regulatory Update: MCA amends Incorporation Rules in relation to Shifting of Registered Office and Incorporation fee for companies

As part of Government’s efforts to make India a startup hub and continuous efforts of ease of doing business in India, the Ministry of Corporate Affairs (the MCA) has issued notification dated 6 March 2019. With this notification following changes will come into effect:

Sl No Category Before Amendment After Amendment Effect of this amendment
1. Shifting of Registered Office from One State to Another The Companies desirous to shift their Registered office from one state to another state shall advertise the notice of shifting the registered office in a vernacular newspaper in the principal vernacular language in the district and in the English language in an English newspaper with the widest circulation in the State in which the registered office of the company is situated.

 

 

 

 

The Companies desirous to shift their Registered office from one state to another state can advertise the notice of shifting the registered office in a vernacular newspaper in the principal vernacular language in the district and in the English language in an English newspaper with the wide circulation in the State in which the registered office of the company is situated.

 

 

This will remove the confusion among the stakeholders with respect to publication of notice in the newspaper and they can choose the newspapers with minimum circulation as well.

 

Prior to amendment if any Company choose to publish in 2nd widest circulation newspaper, then the application would be rejected and this entails to start shifting process a fresh and this would take additional 3-5 months to complete.

 

With this relaxation, companies can choose among various newspapers which has wide circulation.

2. Fee on Incorporation of a Company The companies incorporated with a nominal capital of less than or equal to rupees ten lakhs, fee on INC-32 (SPICe) shall not be applicable. The companies incorporated with a nominal capital of less than or equal to rupees fifteen lakhs, fee on INC-32 (SPICe) shall not be applicable with effect from 18 March 2019. Earlier the Companies with initial authorised capital up to INR 10 lakh was exempted from any MCA fee on Incorporation and only stamp duty was applicable.

 

Now the exemption limit has been increased to INR 15 lakh. Therefore, Companies to be incorporated with nominal capital up to 15 lakh is exempted from MCA fee and stamp duty shall continue to be applicable.

 

Source: http://egazette.nic.in/WriteReadData/2019/199251.pdf

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Synopsis of Amendments made to the Companies Act, 2013 in the year 2019 and allied Action Points

The Ministry of Corporate Affairs (the MCA) in the month of January & February 2019 has issued the following amendments notification under the Companies Act 2013 (the Act):

(a) Changes in Companies (Significant Beneficial Owners) Rules 2018 to identify individuals/entities having significant control over the affairs of a company

(b) Companies (Incorporation) Rules, 2014 mandating all the companies incorporated prior to 31 December 2017 to upload all their particulars of various compliances including details of registered office in Form INC 22A Active.

(c) Specified Companies (Furnishing of information about payment to micro and small enterprise suppliers) Order, 2019, mandating all the companies who receives goods or services from MSME and the payment for which is not made within 45 days from the date of acceptance or the date of deemed acceptance of goods or services from MSME to report such transactions in MSME Form I.

(d) Changes in Companies (Acceptance of Deposits) Rules, 2014 mandating all companies to file a return of deposits in Form DPT 3 with the MCA, furnishing information about filing the transactions that have not been considered as a deposit or both under the Companies (Acceptance of Deposits) Rules 2014 (Deposit Rules).

The action points under these notifications are as below:

Sl. No Particulars Summary of Notification Form to be filed Due date
1. The Companies (Significant Beneficial Owners) Amendment Rules 2019[1] Who shall disclose?

Every individual, who acting alone or together, or through one or more persons or trust, possess one or more of the following rights in a company shall be deemed to be a significant beneficial owner (SBO):

·  holds indirectly, or together with any direct holdings, at least 10% of the shares or voting rights;

·   has the right to receive or participate (by virtue of their indirect and/or direct holdings) is not less than 10% of the total distributable dividend or any other distribution; or

· has the right to exercise significant influence or control (through their indirect holdings only) on the company.

However, individuals directly holding shares of the company in their own name or hold or acquires a beneficial interest in the share of the reporting company under subsection section 89 (2) of the Act and necessary reporting is made is not be considered to be a significant beneficial owner.

Further, an individual is considered to hold a right or entitlement indirectly in the reporting company, if he satisfies any of the following criteria, in respect of a member of the reporting company, namely:

·  If the member is a body corporate (Indian or foreign) – the individual holding majority stake in that body corporate or majority stake in the ultimate holding company of such body corporate member

·  If the member is a HUF – the individual who is the Karta of the HUF

· If the member is a partnership entity – the individual is a partner or holding a majority stake in a body corporate which is a partner or majority stake in the ultimate holding company of such body corporate which is a partner

·  If the member is a trust – the individual who is a trustee (discretionary or charitable trust), a beneficiary (Specific trust), Author/settlor (revocable trust)

· If the member is a pooled investment vehicle or an entity controlled by the pooled investment vehicle – the individual who is a general partner or investment manager or Chief Executive Officer where the investment manager of such pooled vehicle is a body corporate or a partnership entity

What needs to be done?

· To send notice of this requirement to all non-individual members who hold not less than 10% of its Shares, or voting rights, or right to receive or participate in the dividend or any other distribution payable in a financial year seeking information in Form BEN-4.

·  The company to identify any such individual who is an SBO and obtain a declaration of significant beneficial ownership in Form No. BEN-1.

 Non-applicability of this requirement:

These rules shall not apply if the shares of a reporting company are held by the following entities:

· Investor Education and Protection Fund

· Holding Reporting Company of the Reporting Company (however, details of such holding company have to be filed in Form No. BEN-2)

·  the Central Government, State Government or any local Authority

·  any entity controlled by the Central Government or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments;

· Investment Vehicles such as mutual funds, alternative investment funds (AIF), Real Estate Investment Trusts (REITs), Infrastructure Investment Trust (InVITs) regulated by the Securities and Exchange Board of India;

· Investment Vehicles regulated by Reserve Bank of India, or Insurance Regulatory and Development Authority of India, or Pension Fund Regulatory and Development Authority.

(a) Form BEN-1

(b) Form BEN-2

(c) Form BEN-4

 

(a) Form BEN-1- on or before 9 May 2019

(b) Form BEN-2- within 30 days from the date of receipt of Form BEN-1

(c) Form BEN-4- To be sent to seek information in Form BEN-1.

 

2. Companies (Incorporation) Amendment Rules, 2019[2] Applicability:

Every Company incorporated on or before the 31 December 2017 shall file the particulars of the Company and its registered office, in e-Form INC-22A_ACTIVE (Active Company Tagging Identities and Verification)

Pre-requisites

The Company before filing Form INC 22A Active shall ensure that it has filed the following pending forms as may be applicable:

(a) Form AOC-4- Filing of Financial statements for the previous financial year;

(b) Form MGT 7- Filing of Annual Return (e-Form MGT-7) for the previous financial year;

(c) Form DIR 12 & MR 1 as may be applicable for the purpose of appointment of whole-time company secretary. This is mandatory for the Companies whose paid-up capital is more than 5 Crore.

Non-Applicability

The following companies are not required to filed Form INC 22A Active:

1.    Companies which have been Struck off or

2.    Under the process of striking off or

3.    Under Liquidation or

4.    Amalgamated or

5.    Dissolved

Consequences of non-filing

The Company will be marked as Active non-compliant and MCA would not allow filing the following forms unless the Form INC-22A Active is filed:

a.   Form SH-7 (Change in Authorised Capital)

b.   Form PAS-3 (Change in Paid-up Capital)

c.   Form DIR-12 (Changes in Director except for cessation)

d.   Form INC-22 (Change in Registered office)

e.   Form INC-28 (Amalgamation, De-merger)

Form INC 22A Active On or before 25 April 2019.
3. The requirement of filing of MSME Form-I[3]  

With a view to support the growth of and to protect the interest of MSME’s, the MCA has issued a notification dated 22 January 2019, mandating all the Specified Companies[4], whose supply of goods or services from registered MSME and the respective payments to these registered MSME suppliers exceed 45 days from the date of acceptance or the date of deemed acceptance of the goods or services, shall file the Initial Return in MSME Form I with Ministry of Corporate Affairs

 Details required to be collected from the MSME suppliers before filing the return with the MCA

Following details are required to be collected from MSME for the purpose of filing the said form:

1. Certificate of Registration issued by the Ministry of Micro Small and Medium Scale Enterprises to the MSME to ensure that the concerned entity is an MSME.

2. Financial years to which the amount relates

3. Name of the MSME

4. PAN of MSME

5. Amount due

6. Date from which amount is due

7. Total outstanding amount due as on date of notification of this order (i.e. 22 January 2019)

8.    Reason for delay

Filing of Half yearly return

Every company who receive goods or services from MSME and whose payments to MSME suppliers exceed forty-five days from the date of acceptance or the date of deemed acceptance of the goods or services as per the provisions of the MSME Act 2006 shall file the half-yearly returns for the period ended April to September and October to March every year.

 

MSME Form I Within 30 days from the date of Notification of the said Form[5]

 

Due date for filing half yearly return

1.    For the period from April to September- On or before 31st October every year

2.    For the period from October to March- on or before 30th April of every year

4. The Companies (Acceptance of Deposits) Amendment Rules, 2019[6] Every Company shall have to file Form DPT 3 providing particulars of transaction that has not been considered as deposit[7] or both. Thus, all companies other than Government Companies will have to file Form DPT-3 also for transactions that are listed under Deposit Rules.

 Further the companies in its annual financial statements, are required to disclose about the money received from Directors (in case of companies other than private companies) and money received from Directors or relatives of Directors (in case of private companies only).

 

Form DPT 3 On or before 22 April 2019

Author: Ashwin Bhat, Junior Partner at NovoJuris Legal.

[1] Source: http://www.mca.gov.in/Ministry/pdf/CompaniesOwnersAmendmentRules_08020219.pdf

[2] Source: http://www.mca.gov.in/Ministry/pdf/CompaniesIncorporationAmendmentRules_21022019.pdf

[3] Source: http://www.mca.gov.in/Ministry/pdf/MSMESpecifiedCompanies_22012019.pdf

[4] ‘Specified companies’ means, all the Companies who receives goods or services from MSME and if the payment is not made within 45 days from the date of acceptance or the date of deemed acceptance of goods or services.

[5] MSME Form I is yet to be notified by the MCA

[6] Source: http://www.mca.gov.in/Ministry/pdf/AcceptanceDepositsAmendmentRule_22012019.pdf

[7] Transactions provided in Rule 2 of the Deposit Rules

Significant Beneficial Ownership: Who is the real owner of the shares?

The recent changes to Section 90 of Companies Act, 2013, is to determine the identity of the person behind the curtain who is having a significant ownership of the company and is essentially controlling the management and daily affairs of the company. The Ministry of Corporate Affairs notified the Companies (Significant Beneficial Owners) Rules, 2018 (“Rules”) on 13 June 2018. These Rules were made in exercise of powers provided under Section 90 of the Companies Act, 2013 (Act) which was notified on 6 June 2018.

At present, there are two separate definitions for the determination of a significant beneficial owner. The first, as per Section 90 of the Act, an individual who holds at least 25 (twenty-five) percent of beneficial interest in the company would be categorised as a significant beneficial owner. Such individual can hold beneficial interest either alone or together or through one or more persons, with such person or persons including person resident outside India, or a trust, with such trust including a trust outside India.

The second definition of significant beneficial ownership has been provided under the Rule 2(e) of the Rules, which ascribes the categorisation of a significant beneficial owner to an individual. However, a major deviation under the Rules from Section 90(1) is that the threshold provided for an individual being classified as a significant beneficial owner is 10 (ten) percent in contrast to the threshold of 25 (twenty-five) percent prescribed under the Act. Moreover, the definition as per the Rules provide for an additional condition that the name of such individual who is holding beneficial interest should not be entered in the register of members.

Both definitions have deemed a necessary condition that an individual must be holding beneficial interest in the company to be deemed as a significant beneficial owner. The term beneficial interest has been defined under Section 89(10) as the right of entitlement of a person alone or together with any other person, indirectly or directly, through any contract or arrangement, to exercise any or all rights attached to the shares; or to receive or participate in any dividend or any such distribution in respect to shares held.

Despite the contradiction in the threshold for determination of significant beneficial ownership in a company, the threshold specified in the Rules would be considered as the applicable threshold. This is because Section 90 of the Act provides that the beneficial interest should not be less than 25 (twenty-five) percent or any other percentage as may be prescribed. Therefore, the threshold of 10 (ten) percent as prescribed under the Rules would be the final threshold percentage to determine significant beneficial ownership.

The application of the Rules extends to companies which has shareholders apart from individuals and natural persons with such shareholders holding beneficial interest in the company as per prescribed limits. The application of these rules however, does not extend to holding of shares in instances of pooled investment vehicles or investment funds such as AIFs (Alternative Investment Funds), Real Estate Investment Trusts, Mutual Funds, Infrastructure Investment Trusts.

The Rules elucidate that a beneficial interest would include right of entitlement held either alone or jointly with another person, be it directly or indirectly under any contract or arrangement. The right of entitlement would include the right to exercise any or all rights attached to such shares and receive or participate in any dividend or other distribution. Beneficial owners would be such persons holding a beneficial interest.

The rules deem significant beneficial owners to be such individuals, who while acting alone or together or through one or more persons or through a trust, hold beneficial interest of not less than 10% of the shares in the company with the names of such owners not being entered in the register of members of the company as the holder of such shares.

In cases where the beneficial interest is possessed by persons other than individuals or natural persons, the significant beneficial ownership would be determined as follows:

  1. Where the member is a company – the significant beneficial owner would be the natural person who holds 10 (ten) percent of the share capital of the Company or who exercises significant influence or control in the company through other means.
  2. Where the member is a partnership firm – the significant beneficial owner would be the natural person who holds 10 (ten) percent of the share capital or has entitlement of not less than 10 (ten) percent of profits of the partnership.
  3. Where no natural person can be identified – where no natural person is identifiable for a company or a partnership firm, the senior management official of the entity would be deemed as the significant beneficial owner.
  4. Where the member is a trust through a trustee – for the purpose of identifying the significant beneficial owner, the process would include identification of the author of the trust, trustee, the beneficiaries with not less than ten per cent. interest in the trust and any other natural person exercising ultimate effective control over the trust through a chain of control or ownership.

The Rules explicitly exempt the applicability of certain funds and investment vehicles that are registered under the SEBI Act. The Rules however, do not deal with the funds that are foreign based and not registered under the SEBI Act. Therefore, if an Indian company has a foreign fund as an investor and has an ownership qualifying under the definition of a significant beneficial owner, it is not clear whether such foreign fund would be required to make a declaration.

The filing compliance under the rules are as follows:

  1. A declaration is required to be filed to the company in which significant beneficial ownership is held within 90 days of commencement of the rules and in case of any change in the significant beneficial ownership, declaration is to be made to the company within 30 days of such change under Form BEN-1.
  2. The company is required to file Form BEN-2 with respect to such declaration within 30 days of receipt of declaration under Form BEN-1.
  3. A company is required to maintain a register of significant beneficial owners under Form BEN-3.
  4. The company can serve a notice seeking information under Form BEN-4. The person on whom the notice has been served is required to revert to the company within 30 days of receipt of notice. Wherein the company is not satisfied with information provided or person fails to furnish required information, is entitled to apply to the Tribunal within 15 days of expiry of the period mentioned in the notice.

As per the Rules, the companies were required to make a filing of Form BEN-2 on receipt of Form BEN-1 within 30 days. However, the Ministry of Corporate Affairs (MCA) be way of a general circular no. 07/2018 dated 6 September 2018 have clarified that the 30-day time limit for filing Form BEN-2 would commence from the date of the e-form being available on the MCA-21 portal rather than with 30 days of receipt of declaration by the company under Form BEN-1. The MCA further clarified that no additional fee would be applicable subject to the case that the company makes the filing of Form BEN-2 within 30 days of the form being available on the MCA-21 portal.

Source: http://www.mca.gov.in/Ministry/pdf/CompaniesSignificantBeneficial1306_14062018.pdf

http://www.mca.gov.in/Ministry/pdf/GCCircularBen_10092018.pdf

MINISTRY OF CORPORATE AFFAIRS: NOTIFICATION OF COMPANIES (PROSPECTUS AND ALLOTMENT OF SECURITIES) AMENDMENT RULES 2018

The MCA vide its notification dated 7 May 2018 has amended Companies (Prospectus and Allotment of Securities) Rules 2014 and done away the requirement of detailed list of contents of the prospectus following suggestions from the stakeholders that offer documents are becoming too long, too detailed, and repetitive as also too difficult to understand.

Rule 3 of the Companies (Prospectus and Allotment of Securities) Rules 2014  relating to information to be stated in the prospectus, Rule 4of the Companies (Prospectus and Allotment of Securities) Rules 2014 relating to reports to be set out in the prospectus, Rule 5 of the Companies (Prospectus and Allotment of Securities) Rules 2014  relating to other matters and reports to be stated in the prospectus and Rule 6 of  the Companies (Prospectus and Allotment of Securities) Rules 2014 relating to period for which information to be provided in certain cases stands omitted.

Source:

http://www.mca.gov.in/Ministry/pdf/CompaniesProspectusRules_07052018.pdf

MINISTRY OF CORPORATE AFFAIRS: NOTIFICATION OF COMPANIES (APPOINTMENT AND QUALIFICATION OF DIRECTORS) SECOND AMENDMENT RULES 2018

The MCA vide its notification dated 7 May 2018 has amended Companies (Appointment and Qualification of Directors) Rules 2014 by Companies (Appointment and Qualification of Directors) Second Amendment Rules 2018 expanding the scope of qualifications of independent directors.

Rule 5 (2) requires that none of the relatives of an independent director is indebted to the company, its holdings, subsidiary or associate company or their promoters, or directors or has given a guarantee or provided any security in connection with the indebtedness of any third person to the company, its holdings, subsidiary or associate company or their promoters, or directors of such holding company, for an amount of Rupees Fifty Lakhs at any time during the 2 immediately preceding financial years or during the current financial year.

Source:

http://www.mca.gov.in/Ministry/pdf/AppointmentDirectorsRules_07052018.pdf

Nuances associated with Issuance of Compulsorily Convertible Debentures

Compulsorily Convertible Debentures (CCDs) are considered to be hybrid instruments / and equity linked instrument, i.e. they are treated as debt till the time they are converted into equity. When they are issued it is a debt, after a period of time / milestone, it shall be compulsorily converted into shares. On the other hand, the Optionally Convertible Debentures are debt securities and interest is paid to the investors till maturity and repayment.

Under FDI guidelines, CCDs are treated as equity for the purposes of reporting to Reserve Bank of India.

 

The Companies Act, 2013 and the rules issued thereunder (the Act) provide the legal framework for the issue of Debentures[1] by Indian companies. The various kinds of Debentures are (i) Compulsorily Convertible Debentures; (ii) Optionally Convertible Debentures; and (iii) Redeemable Debentures. Section 71 of the Act states that a company could issue debentures with an option to convert into shares either wholly or partly at the time of redemption.

CCDs are considered to be convenient as it allows the investor to tap into the Company’s potential without diluting the founders shareholding percentage until the CCDs are converted into shares.

Here’s an article that we wrote way back in December 2015, which provides details on CCDs.

https://novojuris.com/2015/12/21/raising-of-funds-through-compulsorily-convertible-debentures/

In this post, we have analysed the nuances associated with the issuance of Compulsorily Convertible Debentures (CCDs).

Issuance of Securities:

Under the Act, the securities[2] could be issued in any of the following manner: (i) Private Placement Basis (section 42); (ii) Rights Issues (section 62(1)(a); (iii) Bonus Issue (section 63) and (iv) Sweat Equity (section 54).

Rights Issue: 

Section 62(1)(a) of the Act regulates the issuance of shares by way of a rights issue to the existing shareholders of the Company. Section 62 states that whenever a  company having share capital proposes to increase its subscribed capital by issue of further shares, then such shares shall be offered to persons who are holders of equity shares in the Company in proportion to their paid-up share capital.

Most of the practicing professionals opine that CCDs cannot be issued by way of rights issue since Section 62 (1) of the Act explicitly mentions issuance of “shares”. Whereas Section 42 states that a company may make a private placement of “securities”.  However, a few professionals opine that CCDs are a hybrid instrument which shall be compulsorily convertible into equity shares and therefore is considered as an equity-like instrument and they argue that the CCDs can be issued under rights issue.

Private Placement:

The rigour of following the Private Placement under section 42 is quite high, many nuances and high penalties for non-compliances.

Section 42 of the Act provides that the offer of securities or invitation to subscribe securities on a private placement basis shall be made to such number of persons not exceeding fifty or such higher number as may be prescribed, (excluding qualified institutional buyers and employees of the company being offered securities under a scheme of employees stock option), in a financial year and on such conditions (including the form and manner of private placement) as may be prescribed.

Every private placement of securities must be made with the prior approval of the shareholders of the Company by a special resolution approving the private placement offer letter. The utmost important condition under section 42 is the total face value of each kind of securities issued to each person shall be at least Rs. 20,000. The private placement offer letter is required to be accompanied by an application form addressed specifically to the person to whom the offer is being made. Additionally, the Act lays down the following requirements: (i) the offer has to be made only to those persons whose names are recorded by the company prior to the issue of the offer letter to subscribe to the securities; (ii) a complete record of offers has to be kept by the issuer in a prescribed manner, and (iii) complete information about the offer has to be filed with Registrar of Companies (the RoC) within 30 days of circulation of the offer letter.

Allotment in respect of private placement of securities (including CCDs) is required to be completed within 60 days from the date of receipt of application money. Additionally, the consideration so received towards issuance of securities (including CCDs) could be utilised only upon the securities been allotted and the return of allotment in this respect is filed with the RoC. In the event of non-allotment, the consideration so received is to be refunded to the subscribers within 15 days from the date of completion of 60 days. If the company fails to refund the consideration within the 15 days, it is liable to pay interest at the rate of 12% from the end of the 60th day.

Considering numerous disclosures, conditions and huge penalties associated with private placement basis, the practicing professionals always tends towards the rights issue mechanism which involves minimal disclosures etc.

Additional Compliance in case of Issuance of CCDs to non-residents

(a) CCDs as debt or equity instrument: It is also pertinent to note that the under the Foreign Exchange Management Act, 1999 and rules, regulations made thereunder (FEMA), any investment by any non-resident towards CCDs are considered as equity instrument under FDI guidelines. However, the investment by non-resident towards Optionally Convertible and Redeemable Debentures are considered as debt instruments and being construed as External Commercial Borrowings.

(b) Terms of Conversion of CCDs: The terms of conversion are to be decided upfront at the time of issuance of these CCDs. It is important to note that the price/conversion formula of convertible capital instruments should be determined upfront at the time of issue of the instruments and the price at the time of conversion should not, in any case, be lower than the fair value worked out, at the time of issuance of such instruments, in accordance with the provisions of FEMA. It may also be noted that there are no explicit restrictions on variation/change in terms of conversion either under the Act or under FEMA. However, the Reserve Bank of India (the RBI) has raised objections to such change in terms of conversions.

(d) Fair Market Valuation: The CCDs shall be issued at or above the fair market value as on the date of issuance of such CCDs. The valuation of CCDs shall be done as per any internationally accepted pricing methodology for valuation on an arm’s length basis duly certified by a Chartered Accountant or a Securities and Exchange Board of India registered Merchant Banker or a practicing Cost Accountant.

Closing remarks:

Considering nuances associated with the issuance of CCDs on private placement basis and the

statutory provisions with regard to issuance of CCDs on rights basis being silent, the method of issuance has become slightly ambiguous and lead to varied interpretations. A clarity to this effect from the Ministry of Corporate Affairs would help and aid all stakeholders to issue CCDs without resorting to various interpretations.

Author: Shruthi Shenoy, is an Associate with NovoJuris Legal

[1] Debenture is defined under 2(30) of the Companies Act 2013 as Debenture includes debenture stock, bonds or any other instrument of a company evidencing a debt, whether constituting a charge on the assets of the company or not.

Provided that: (a) the instruments referred to in Chapter III-D of the Reserve Bank of India Act, 1934; and (b) such other instrument, as may be prescribed by the Central Government in consultation with the Reserve Bank of India, issued by a company, shall not be treated as debenture;

[2] The term “securities” includes debentures.

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Regulatory Update: Ministry of Corporate Affairs – Companies (Authorized to Register) Amendment Rules, 2018.

The MCA vide its notification dated 16 February 2018 has amended the Companies (Authorised to Register) Rules, 2014 and notified the Companies (Authorised to Register) Amendment Rules, 2018, substituting form no. URC-1 (Application by a Company for registration under Section 366 i.e, Conversion from firm into Company and LLP into Company)

Source:

http://www.mca.gov.in/Ministry/pdf/CompaniesAuthorisedRegisterAdmendmentRules2018_19022018.pdf