Companies Operating Without Certificate of Incorporation

Much to the surprise of MCA, and the entire community of professionals dealing in Corporate Law, complaints have been received in respect of companies operating without certificate of incorporation under the Companies Act, 1956 during the last three years. The names are as follows :

(i) M/s Speakasia Online;
(ii) M/s Purvanchal Krishi Vinan Corporation Limited;
(iii) M/s Wonders Healthcare Private Limited;
(iv) M/s Preceptor Knowledge Academy Private Limited.

The Certificate of Incorporation is perhaps the most important document for any company incorporated in India. It is the main proof of existence of the company and during any kind of application that needs to be submitted to a government agency, a copy of the Certificate of Incorporation is always required. Foreign companies entering the Indian market should note that their company is not considered to legally exist in India until and unless they have successfully obtained the Certificate of Incorporation. Although there are a number of formalities to be completed after the Certificate of Incorporation has been issued, legally the company can start their business activities and even start applying for the tax identification number, permanent account number etc.

The Certificate of Incorporation is actually quite a simple document which contains the date of incorporation, the name of the company incorporated and also where the company was incorporated in India. Foreign companies can apply for the Certificate of Incorporation from only that state where it has decided to setup their head office in India. Hence the Certificate of Incorporation would carry the stamp of the issuing office and also details of the state where the company was incorporated.

The Company Registrar in India is responsible for issuing the Certificate of Incorporation to companies. Usually it takes about two weeks to obtain the Certificate of Incorporation and companies have to submit their Memorandum and Articles of Association along with all other required documents for company incorporation. If the authorities are happy with the documents submitted and also if the company has followed all the pre-requisites for company incorporation in India, then the Company Registrar will issue the Certificate of Incorporation. As mentioned earlier, moment this has been issued, the company is now considered as legally existing and may proceed to post-registration formalities.

Certificate of Incorporation is needed to apply for other documents such as the Professional Tax Number, PAN, TAN, VAT, CST etc. All other incorporated bodies in the country must acquire and maintain a physical copy of the Certificate of Incorporation. Digital copies maintained on computers are still not considered as valid documents in India when it comes to official communication with the government agencies.

Giving this information in written reply to a question in the Parliament, Shri Sachin Pilot, Minister of Corporate Affairs, said that investigation into the affairs of M/s Speakasia Online has been ordered, to be conducted by the Serious Fraud Investigation Office (SFIO). In case of other three companies, Registrar of Companies (ROC), Kanpur has filed prosecution under Section 631 of the Companies Act, 1956.

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