services

Private Limited Company vis a vis other business structures

Parameter

Sole Proprietorship

Partnership

One Person Company (OPC)

Limited Liability Partnership (LLP)

Private Limited Company

Statute

Common Law

Common Law – unregistered

Indian Partnership Act, 1932- registered

Companies Act, 2013

Limited Liability Partnership Act, 2008

Companies Act, 2013

Ownership

The Proprietor- an individual

Minimum 2 partners ( a company can be a partner)

Division of Labour-

O/ship- Promoter (only one)

Daily working- Board of Director(s) (OPC may have more than 1 director)

Division of Labour-

O/ship- All partners

Daily working- Designated Partners

Division of Labour-

O/ship- Promoters and shareholders

Daily working- Board of Directors (at least 2 directors)

Legal identity & Liability

No distinct PAN.

No separate legal entity. Proprietor to bear all liabilities.

Distinct PAN.

No separate legal entity from its partners. Private assets of the partners can be used to meet the liabilities of the firm in case firm's assets are not adequate to meet its liabilities.

Distinct PAN

Separate legal entity

Limited Liability. Personal property does not get attached

Distinct PAN

Separate legal entity

Limited Liability. Personal property does not get attached

Distinct PAN

Separate legal entity

Limited Liability. Personal property does not get attached

Funding

Owned funds. Difficult for bank loans. Collateral of personal assets.

Owned funds or debt. Cannot raise or offer equity

Owned funds. Debt funds can be managed.

For startups, Investors do not like to invest in this type of business entity

Best option if looking for business expansion I long run. Both Debt and Equity permitted.

Costs:

Incorporation

NIL

Very minimal.

If registered, then cost for registration. May go upto 10000/-

Presently greatly reduced. CG charges- NIL upto 15 Lakhs

Stamp Duty payable to State Governments ranging from 200/- to 10000/-

Very minimal.

Presently greatly reduced. CG charges- NIL upto 15 Lakhs

Stamp Duty payable to State Governments ranging from 200/- to 10000/-

Recurring

Trade license

Trade License

Tax Audit depending on Turnover

Filing of Forms

Auditor Fees

ITR filing fees

Other business registrations

Filing of Forms

Auditor Fees- if Turnover exceeds 40 Lakhs

ITR filing fees

Filing of Forms

Auditor Fees

ITR filing fees

Other business registrations

Taxation

Depends on personal tax slabs

Taxed at 30%. Remuneration

paid to partners can be

claimed as deduction,

restricted to the limits

speci‑ed (under the IT Act).

MAT does not apply.

No general advantages

(industry specific advantages are available). Tax to be paid at flat rate of 30% on profits, Dividend taxable in hand of receiver.

Minimum

Alternate Tax (MAT) applicable

No general advantages

(industry specific advantages are available). Tax to be paid at flat rate of 30% on profits. MAT is applicable.

Taxes on Income The following rates are applicable to the domestic companies for AY 2020-21 based on their turnover (excluding cess & surcharge):

*Sections*	*Tax rate*	*Surcharge*
Section 115BA (Applicable Manufacturing Domestic Companies	25%	7%/12%*
Section 115BAA (applicable domestic companies)	22%	10%
Section 115BAB (manufacturing)	15%	10%
Any other case	30%	7%/12%*

Dividend taxable in hand of receiver. Minimum

Alternate Tax (MAT) applicable

Going Concern

Not survive if proprietor departs

Departure of any partner brings it to an end

Nominee is mandatory to be appointed. It will continue

It will continue even if a partner departs

It will continue as it has perpetual succession.

Memorandum and Articles of Association

Once the name is approved by the MCA (Ministry of Corporate Affairs), the next step is to draft a “Memorandum of Association” (MOA) and the “Articles of Association” (AOA). Both the MOA and AOA will be filed with the MCA in SPICE Forms

Memorandum of Association

Memorandum of Association (MOA) represents the charter of any company in India. Being a legal document which is prepared while the incorporation and registration of a company, it defines the precise relationship with shareholders and the main objectives of the Company along with other objectives for which the company has been formed. A company can undertake only those activities as mentioned in the object clause of in the Memorandum of Association.

MOA lists the 5 major clauses of the Company and is known by the acronym NALCO. Though the order of displaying the same is different in the MoA

N - Name Clause (Clause I)

A - Address Clause (State in which Registered Office will be situated) (Clause II)

L - Liability Clause (Clause IV)

C - Capital Clause (includes Subscription clause) Clause V)

O - Object Clause (divided into main object and ancillary objects clauses) (Clause III)

Articles of Association

Articles of Association ( AOA ) specifies the regulations on which the company will be managed. It not only lay down the duties, rights and powers of management that will manage the company. It may be considered as a subsidiary to the Memorandum of Association (MOA). AOA articulates the guidelines that should be followed to achieve the objectives of the company laid down in the object clause. The objective of AoA is to bring clarity in the daily functioning/ working of the Company and how the company will interact with its various stakeholders. It primarily contains information related to share capital, transfer of shares, voting rights of the shareholders, the appointment of directors, accounts, audit of the company etc.

Name Reservation

It is important to be very careful while applying for reservation of name of a Company,as there can be rejection of name approval application in the following cases:

a) Proposed Name exactly identical/resembled/phonetically to the name of an existing Company/LLP.

b) Proposed Name includes words which are registered under Trademark Act with a specific class(es)

c) Wrong Class/Category/SubCategory of the Proposed Company is mentioned in web form.

d) Industrial Activity Code of NIC is not found in consonance with the attached objects of the Company in SPICe+ PART A

e) Proposed Name is found Descriptive i.e. it contains commonly used words (proper pre- fix or suffix not used in name)

f) No significance about Abbreviations used in proposed name.

g) Proposed Name indicates words Finance/Investment/Capital/ Holding/ Insurance etc. whereas the proposed objects of the Company do not indicate such activities.

h) Objects mentioned in the form are vague and the TM cannot be ascertained. (E.g. manufacturing / development / producing of all types of goods etc.)

i) Name contain words viz Board, National, Commission etc as given in Rule 8B of the Companies (Incorporation) Rules, 2014 for which previous approval of the Central Government is required.

j) Application made with Restricted and Undesirable names (System may not allow filing of such applications).

k) Proposed name closely resembles the popular or abbreviated description of an existing company or limited liability as per rule 8A(1)(h) of Companies (Incorporation) Fifth Amendment Rules, 2019.

l) Previous approval of the Central Government has not been obtained and attached with application Where any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Government, or any local authority, corporation or body constituted by the anyGovernment.

m) If the proposed name contains the name a foreign country/city/town etc. then the applicant has to attach any proof of significance of business relations with such foreign country like MOU with a company of such country. In case proposed name includes name of India and a foreign country (eg. India Japan or Japan India) in such cases name shall be allowed if there is Government to government participation or patronage and no company shall be incorporated using the name of the enemy country.(pl refer Rule 8A(1)(t).

How to apply for Company Name Reservation and pertinent information

2 names can be applied for in Form Spice Part A along with applicable industry/business activity. Select the NIC 2008 activity (2 digit) as applicable to the Company under incorporation. The meaning of the name has to be given. If name in regional language or any other language, then complete explanation for the name required. It has to be checked that the desired name does not trigger any name under the trademark check or with an existing company name.

Sometimes, clarifications are required to be given against specific queries raised by the MCA. If the name is not approved in the first instance, then it can be resubmitted only one more time with more names.

Initially, the name approval is given for only 20 days. Thereafter on payment of fees, it can be extended for a further period of 20 -60 days.

Should a Company opt for a Common Seal?

Common Seal has not been defined anywhere in the Companies Act, 2013 nor was it defined in the erstwhile Companies Act, 1956.

But through references in various sections and the Articles of Association of the Companies Act and as per Secretarial Standards issued by the Institute of Company Secretaries of India, the Common Seal and its application, safe-keeping etc. are to be understood.

The 1956 Act’s language was such that Common Seal was mandatory to be adopted by the Company. When the 2013 Act was promulgated, the Common Seal was mandatory but The Companies (Amendment) Act, 2015 made it optional.

Prior to the amendment, Section 9 of the Companies Act, 2013 stated that “From the date of incorporation mentioned in the certificate of incorporation, such subscribers to the memorandum and all other persons, as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable of exercising all the functions of an incorporated company under this Act and having perpetual succession and a Common Seal, with power to acquire, hold and dispose of property, both movable and immovable, tangible and intangible, to contract and to sue and be sued, by the said name.”

The words ‘and a common seal’ were thereafter deleted.

A Common Seal, if adopted by a Company, should be used on the following documents, as provided for under various sections of the Companies act, 2013:

Section 22- Execution of Bills of Exchange, etc.
Section 22- Authorise any person, either generally or in respect of any specified matters, as its attorney to execute other deeds on its behalf in any place either in or outside India;
Section 46- Certificate of shares;
Section 105-An instrument of proxy executed by a body corporate;
Section 223- Authentication of Report of an Inspector;

Further the Articles of Association have to provide for the safekeeping and authority for its usage to the Board of Directors.

Summary:

A Company has the option to adopt a Common Seal. If the Company adopts a Common Seal, it has to provide for the following:

Adoption in Articles of Association
Adoption of Common Seal in Board meeting of the Company
Authority to Director for safe keeping
Authority to Directors read with Articles for its application on documents
Maintaining of a Register of Common Seal

Procedure for attestation of documents:

In case, the director is residing outside India, then the attached supporting documents should be attested as follows:
A.	Proof of Identity-Passport/PAN Card	Authority of attestation
	For Indian National (Non-Resident)-who is residing in country which is part of Commonwealth countries	Attested by India Embassy
	For Indian National (Non-Resident)-who is residing in country which is part of Hague countries	Attested by India Embassy
	For Indian National (Non-Resident)-who is residing in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961	Attested by India Embassy

B	Proof of Address for Indian Citizen (RI or NRI)	Authority of attestation
	For Indian National (Non-Resident)-Permanent address in India	Any professional CA/CS or CMA (Practising)
	For Indian National (Non-Resident)-Present address at overseas - which is a country under CommonWealth countries	Notarised by Public Notary
	For Indian National (Non-Resident)-Present address at overseas - which is a country under hague Convention	1. Notarised by the Public Notary of that foreign country; and 2. Apostilled by the competent authority of that foreign country
	For Indian National (Non-Resident) - Present address at overseas - -who is residing in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961	1. Notarised before the Notary (Public) of such country; and 2. The certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer

In case, the director is a foreign national, then the attached supporting documents should be attested as follows:
A.	Proof of Identity-Passport	Authority of attestation
	For Foreign National residing in his own country which is under Hague Convention	1. Notarised by the Public Notary of that foreign country; and 2. Apostilled by the competent authority of that foreign country
	For Foreign National residing outside his country and that country where he resides is under Hague Convention	Option A- Notarised by the Public Notary of that foreign country; and Apostilled by the competent authority of that foreign country Or Option B - Attested by Embassy of his country of origin at place where he resides
	For Foreign National residing in his own country which is under commonwealth country	Notarised by the Public Notary
	For Foreign National residing outside his country and that country where he resides is under commonwealth country	Option A- Notarised by the Public Notary of that foreign country; Or Option B - Attested by Embassy of his country of origin at place where he resides

B.	Proof of Address (Foreign National)	Authority of attestation
	For Foreign National residing in his own country which is under Hague Convention	1. Notarised by the Public Notary of that foreign country; and 2. Apostilled by the competent authority of that foreign country
	For Foreign National residing outside his country and that country where he resides is under Hague Convention	Option A- Notarised by the Public Notary of that foreign country; and Apostilled by the competent authority of that foreign country Or Option B - Attested by Embassy of his country of origin at place where he resides
	For Foreign National residing in his own country which is under commonwealth country	Notarised by the Public Notary
	For Foreign National residing outside his country and that country where he resides is under commonwealth country	Option A- Notarised by the Public Notary of that foreign country; Or Option B - Attested by Embassy of his country of origin at place where he resides
	For Foreign National who is from a country which is outside the Commonwealth and also not a party to the Hague Apostille Convention, 1961	1. Notarised before the Notary (Public) of such country; and 2. The certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer

http://thecommonwealth.org/member-countries

http://www.internationalapostille.com/hague-apostille-member-countries/

Non Resident Indian

Who is an NRI?

As per RBI- A ‘Non-resident Indian’ (NRI) is a person resident outside India who is a citizen of India.

As per Income Tax Act, 1961 "non-resident" means a person who is not a "resident", and for the purposes of sections 92, 93 and 168, includes a person who is not ordinarily resident within the meaning of clause (6) of section 6 ;

The word “person" includes—

(i) an individual,

(ii) a Hindu undivided family,

(iii) a company,

(iv) a firm,

(v) an association of persons or a body of individuals, whether incorporated or not,

(vi) a local authority, and

(vii) every artificial juridical person, not falling within any of the preceding sub-clauses.

Explanation.—For the purposes of this clause, an association of persons or a body of individuals or a local authority or an artificial juridical person shall be deemed to be a person, whether or not such person or body or authority or juridical person was formed or established or incorporated with the object of deriving income, profits or gains;

How to determine that an Individual is NRI?

'Non-resident Indian' is an individual who is a citizen of India or a person of Indian origin and who is not a resident of India. Thus, in order to determine whether an Individual is a non-resident Indian or not, his residential status is required to be determined under Section 6. As per section 6 of the Income-tax Act, an individual is said to be non-resident in India if he is not a resident in India and an individual is deemed to be resident in India in any previous year if he satisfies any of the following conditions:

1. If he is in India for a period of 182 days or more during the previous year; or

2. If he is in India for a period of 60 days or more during the previous year and 365 days or more during 4 years immediately preceding the previous year.

However, in respect of an Indian citizen and a person of Indian origin who visits India during the year, the period of 60 days as mentioned in (2) above shall be substituted with 182 days. The similar concession is provided to the Indian citizen who leaves India in any previous year as a crew member or for the purpose of employment outside India.

The Finance Act, 2020, w.e.f., Assessment Year 2021-22 has amended the above exception to provide that the period of 60 days as mentioned in (2) above shall be substituted with 120 days, if an Indian citizen or a person of Indian origin whose total income, other than income from foreign sources, exceeds Rs. 15 lakhs during the previous year. Income from foreign sources means income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India).

An Indian citizen shall be deemed to be resident in India only if his total income, other than income from foreign sources, exceeds Rs. 15 lakhs during the previous year. For this provision, income from foreign sources means income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India).

However, such individual shall be deemed to be Indian resident only when he is not liable to tax in any country or jurisdiction by reason of his domicile or residence or any other criteria of similar nature.

Thus, from Assessment Year 2021-22, an Indian Citizen earning total income in excess of Rs. 15 lakhs (other than from foreign sources) shall be deemed to be resident in India if he is not liable to pay tax in any country.

A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grand-parents, was born in undivided India.

6. For the purposes of this Act,—

(1) An individual is said to be resident in India in any previous year, if he—

(a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or

(b) [***]

(c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year.

Explanation 1.—In the case of an individual,—

(a) being a citizen of India, who leaves India in any previous year as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted ;

(b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted 30[and in case of 31[such person] having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, for the words "sixty days" occurring therein, the words "one hundred and twenty days" had been substituted.]

Explanation 2.—For the purposes of this clause, in the case of an individual, being a citizen of India and a member of the crew of a foreign bound ship leaving India, the period or periods of stay in India shall, in respect of such voyage, be determined in the manner and subject to such conditions as may be prescribed.32

33[(1A) Notwithstanding anything contained in clause (1), an individual, being a citizen of India, having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year shall be deemed to be resident in India in that previous year, if he is not liable to tax in any other country or territory by reason of his domicile or residence or any other criteria of similar nature.]

A Hindu undivided family, firm or other association of persons is said to be resident in India in any previous year in every case except where during that year the control and management of its affairs is situated wholly outside India.

A company is said to be a resident in India in any previous year, if—

(i) it is an Indian company; or

(ii) its place of effective management, in that year, is in India.

Explanation- For the purposes of this clause "place of effective management" means a place where key management and commercial decisions that are necessary for the conduct of business of an entity as a whole are, in substance made.

Every other person is said to be resident in India in any previous year in every case, except where during that year the control and management of his affairs is situated wholly outside India.

NOT ORDINARILY RESIDENT

A person is said to be "not ordinarily resident" in India in any previous year if such person is—

(a) an individual who has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less; or

(b) a Hindu undivided family whose manager has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less 35[; or

(c) a citizen of India, or a person of Indian origin, having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, as referred to in clause (b) of Explanation1 to clause (1), who has been in India for a period or periods amounting in all to one hundred and twenty days or more but less than one hundred and eighty-two days; or

(d) a citizen of India who is deemed to be resident in India under clause (1A).

Explanation- For the purposes of this section, the expression "income from foreign sources" means income which accrues or arises outside India (except income derived from a business controlled in or a profession set up in India) and which is not deemed to accrue or arise in India.

Documents required for DIN- Indian Director

1. Passport size photograph

2. List of interest in other Company(ies), LLP(s), Partnership(s), Sole Proprietorship(s) giving Name of entity, registration No., Designation, etc.

3. Proof Of Identity (any one) (Name that matches with PAN)

Voter's Identity Card or

Passport or

Driving License

4. Residential Proof (any one)(Name that matches with PAN)

Bank statement or

Electricity Bill or

Telephone Bill or

Mobile Bill

(Should be in name of individual director) (Should not be older than 2 months)

Documents required for DIN- NRI Director

1. Passport size photograph

2. Verified and attested copy of Passport if the Director has passport

3. List of interest in other Company(ies), LLP(s), Partnership(s), Sole Proprietorship(s) giving Name of entity, registration No., Designation, etc.

4. Residential address proof for permanent address : (any one)(should be in the name of applicant only)

Passport

Election (voter identity) card

Ration card

Driving License

Electricity bill

Telephone bill

Aadhaar

5. Residential address proof for present residential address: (any one)(should be in the name of applicant only)

Passport

Election (voter identity) card

Ration card

Driving License

Electricity bill

Telephone bill

Aadhaar

Documents required for DIN- Foreign Director

(All documents in Pdf scanned. Image file in jpeg format)

(All documents to be Self Attested and signed on each page)

1. Passport size photograph

2. Verified and attested copy of Passport if the Director has passport

3. List of interest in other Company(ies), LLP(s), Partnership(s), Sole Proprietorship(s) giving Name of entity, registration No., Designation, etc.

4. Residential address proof for permanent address : (any one)(should be in the name of applicant only)

Passport

Election (voter identity) card

Ration card

Driving License

Electricity bill

Telephone bill

Aadhaar

5. Residential address proof for present residential address: (any one)(should be in the name of applicant only)

Passport

Election (voter identity) card

Ration card

Driving License

Electricity bill

Telephone bill

Aadhaar

Documents required for Individual Subscriber (Indian, NRI or Foreign Resident)

Mandatory:

PAN Card

Aadhaar Card

Passport photo

Declaration from the foreign subscriber(s) in respect of not having PAN

Any one of the following:

Passport

Voter Id

Driving License

Any one of the following:

Bank Statement

Electricity Bill

Telephone Bill

Mobile Bill

Documents required for Non Individual Subscriber alongwith the above documents

Mandatory:

Certificate of Incorporation or such proof

MoA and AoA of the Company subscriber

Board Resolution from the Company authorising such investment

If Subscriber is a foreign Company, then Declaration from the foreign subscriber(s) in respect of not having PAN, and

Any one of the following:

Bank Statement

Electricity Bill

Telephone Bill

Mobile Bill

For Registered Office premises

Mandatory- any one

Rent agreement

Lease Agreement

Ownership deed

Mandatory

NOC from Landlord

Mandatory- Any one utility bill in name of owner (not older than 2 months)

Electricity Bill

Telephone Bill

Water Bill

Municipal Charges bill

--------------------------------------------------------------------------------

* (All documents in Pdf scanned. Image file in jpeg format)

* (All documents to be Self Attested and signed on each page)

Incorporations

Private Limited Company

Pricing Summary

What do you get?

Why Should You Choose SeedUp

for registering your company?

SAVINGS

FASTEST

ADHERENCE

RESPONSIBLE

HASSLE FREE

Documents Required

Incorporation

Private Limited Company

Process for Incorporation

Important features of

Private Limited Company

Separate Legal Entity

Private

Liability

Funding

Private Limited Company vis a vis other business structures

Company in the Indian context

Non Resident Indian

Steps after Company formation

Incorporations

Private Limited Company

Pricing Summary

What do you get?

Why Should You Choose SeedUp

for registering your company?

SAVINGS

FASTEST

ADHERENCE

RESPONSIBLE

HASSLE FREE

Documents Required

Incorporation

Private Limited Company

Process for Incorporation

Important features of

Private Limited Company

Separate Legal Entity

Private

Liability

Funding

Private Limited Company vis a vis other business structures

Company in the Indian context

Non Resident Indian

Steps after Company formation

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