Chapter II
INCORPORATION OF COMPANY AND MATTERS INCIDENTAL THERETO

Provisions of the Companies Act, 2013:
Section 12: Registered Office of the Company
Rule 2.22 to 2.25 of the Companies Rules, 2013
[Section 12 is not yet brought to force and the Companies Rules, 2013 is not yet brought to force]

Corresponding provisions of the Companies Act, 1956:
Sections 146 and 147

Corresponding provisions of the English Companies Act, 2006:
Sections 86 and 87

Applicability:
This section is applicable to all companies.

A company shall on and from the 15th day of its incorporation and at all times thereafter, have a registered office for receiving and acknowledging all communications and notices as addressed to the company. [Section 12(1)].

Verification of Registered office:
The company shall furnish to the Registrar of Companies (ROC) a verification of its registered office in Form no. 2.25 along with the following documents within 30 days of its incorporation [Section 12(2) r/w rule 2.22]:

1. Registered document of the title of the premises of the registered office in the name of the company; or
2. Notarized copy of lease / rent agreement in the name of the company along with a copy of rent paid receipt not older than one month;
3. Authorization from the owner or authorized occupant of the premises along with proof of ownership or occupancy authorization, to use the premises by the company as its registered office;
4. Document of connection of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner/document as the case may be which is not older than 2 months.
5. the list of all other companies with their CIN, having the same unit/tenement/premises as their registered office address.

Publication of Name of the Company: [Section 12(3) r/w rule 2.23]
A company shall paint or affix its name and the address of its registered office outside every office of the company in a conspicuous position in legible characters. Where the name of the company is in language which is not used in that locality, where the registered office of the company is situated, in such case, name and address shall be affixed in that language and also in local language. The Company shall have its name engraved on common seal.

Further, the company shall print its name, registered office address, corporate identity number along with telephone number, fax number, email and website addresses, if any, in all its business letters, billheads, letter papers and in all its notices and other official publications. The company shall print its name on hundies, promissory notes, bills of exchange and such other documents as and when notified by the Central Government.

Where a company has changed its name or names during the last two years, it shall affix or paint or print the former name of the company outside every office of the company in legible characters, and in all its official publications mentioned above.

In case of One Person Company, a company shall affix, print or engrave the words “One Person Company” in bracket below the name of the Company.

Notice and verification of change of registered office: [section 12(4) r/w rule 2.24]

1. A company shall give intimation of change in registered office of the company (within the local limits of city, town or village where such office is situated) to ROC within 15 days of such change in Form no. 2.25.

2. Change in / shifting of the registered office of the company within the same State but outside the local limits of city, town or village where such office is situated: [Section 12(5) r/w rule 2.25]

Approval of the members of the company by way of special resolution is required for shifting of the registered office of the company within the same State but outside the local limits of city, town or village where such office is situated.

3. Further, if shifting of the registered office of the company within the same State but outside the local limits of city, town or village where such office is situated results into falling of new registered office within the jurisdiction of another ROC within the same State then prior approval of the Regional Director is also required to be obtained.

Before making an application to the Regional Director, the company shall publish a notice in newspapers as under:

Atleast one month before filing any application with the Regional Director for the change of registered office, notice shall be published:
(a) at least once in a daily newspaper published in English and in the local language where the registered office of the company is situated and
(b) serve individual notice on each debenture holder, depositor and creditor of the company;
clearly indicating the matter of application and stating that any person whose interest is likely to be affected by the proposed alteration of the memorandum may intimate his nature of interest and grounds of opposition to the Regional Director with a copy to the company within twenty one days of the date of publication of that notice:
In case no objection is received by the Regional Director within twenty one days from the date of service or publication of the notice, the person concerned shall be deemed to have given his consent to the change of registered office proposed in the application:
The shifting of registered office shall not be allowed if any inquiry, inspection or investigation has been initiated against the Company or any prosecution is pending against the company under the Act. [2nd proviso to rule 2.225].

As per Section 12(6) & (7), the Regional Director shall give its confirmation within 30 days from the date of receipt of application made by the company. Further, the company shall file the confirmation with ROC within 60 days from the date of confirmation. The Registrar shall certify the same within 30 days from the date of filing of such confirmation and issue certificate of registration and the change shall take effect from the date of said certificate.

4. Shifting of registered office from one State of India to another is covered by provisions of section 13.

Penalty:
If default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of Rs. 1,000 for every day during which the default continues which shall not exceed Rs. 1,00,000 [Section 12(8)]

Nature of offence:
Since officers of company may be punished with imprisonment, it is necessary to decide nature of offence.
As violation of the section 12 is not covered under sub-section 6 of section 212, it is non-cognizable offence as provided in section 439.

Adjudication:
Under Section 454, the officer appointed by the Central Government, not below the rank of Registrar of Companies, may adjudicate and impose monetary penalty for violation of this section, where it decides that no prosecution be launched. However, before imposing penalty, an opportunity of hearing shall be given to the Company and its officers.

Compounding:
It may be noted that under section 441, where offence is punishable with fine only, the same may be compounded by the National Company Law Tribunal or where the fine does not exceed Rs.5,00,000/- by the Regional Director or any other officer authorised by the Central Government.
Both company and every officer who is in default may apply for compounding for violation of section 12.

Summary of forms and records
A verification of its registered office and notice of every change in registered office of the company shall be filed in Form No. 2.25 (Rule 2.22 and Rule 2.24)
An application for obtaining approval of the Regional Director is required to be made in Form no. 2.26 along with the fees (Rule 2.25)