As per Section 2(62) of the Company’s Act 2013, a company can be formed with just one Director and one member. It is a form of a company where the compliance requirements are lesser than that of a private company.
By: Akshat Badjatya, Renaissance Law College.
A new concept has been introduced in the Company’s Act 2013, about the One Person Company (OPC). In a Private Company, a minimum of 2 Directors and Members are required whereas in a Public Company, a minimum of 3 Directors and a minimum of 7 members. A single person could not incorporate a Company previously.
As per Section 2(62) of the Company’s Act 2013, a company can be formed with just 1 Director and 1 member. It is a form of a company where the compliance requirements are lesser than that of a private company.
One Person Company (OPC): Process of Registration
Step 1: Apply for DSC *
Step 2: Apply for DIN **
Step 3: Name Approval Application
Step 4: Documents Required
Step 5: Filing Forms with MCA
Step 6: Issue of certificate of Incorporation
1. Apply for DSC: The first step is to obtain the Digital Signature Certificate (DSC) of the proposed Director which required the following documents:
- Address Proof
- Aadhaar card
- PAN card
- Email Id
- Phone Number
2. Apply for DIN: Once the Digital Signature Certificate (DSC) is made, the next step is to apply for the Director Identification Number (DIN) of the proposed Director in SPICe Form along with the name and the address proof of the director. Form DIR-3 is the option only available for existing companies. It means with effect from January 2018, the applicant need not file Form DIR-3 separately. Now DIN can be applied within SPICe form for up to three directors.
3. Name Approval Application: The next step while incorporating an OPC is to decide on the name of the Company. The name of the Company will be in the form of “ABC (OPC) Private Limited”.
There are 2 options available for getting name approved by making application in Form SPICe 32 or by using RUN Web service of MCA by giving only 1 preferred name along with the significance of keeping that name. However, with effect from March 23, 2018, Ministry has decided to permit two proposed Names and one re-submission (RSUB) while reserving Unique Names (RUN Service) for the Companies.
Once the name is approved by the MCA we move on to the next step.
4. Documents Required: We have to prepare the following documents which are required to be submitted to the ROC:
a. The Memorandum of Association (MoA) which are the objects to be followed by the Company or stating the business for which the company is going to be incorporated.
b. The Articles of the Association (AoA) which lays down the by-laws on which the company will operate.
c. Since there are only 1 Director and a member, a nominee on behalf of such person has to be appointed because in case he becomes incapacitated or dies and cannot perform his duties the nominee will perform on behalf of the director and take his place. His consent in Form INC – 3 will be taken along with his PAN card and Aadhar Card.
d. Proof of the registered office of the proposed Company along with the proof of ownership and a NOC from the owner.
e. Affidavit and Consent of the proposed Director of Form INC -9 and DIR – 2 resp.
f. A declaration by the professional certifying that all compliances have been made.
5. Filing of forms with MCA: All these documents will be attached to SPICe Form, SPICe-MOA and SPICe-AOA along with the DSC of the Director and the professional, and will be uploaded to the MCA site for approval.
After uploading, Form 49A and 49B will be generated for the PAN and TAN generation of the Company which have to be uploaded to MCA after affixing the DSC of the proposed Director.
6. Issue of the certificate of Incorporation: On verification, the Registrar of Companies (ROC) will issue a Certificate of Incorporation and we can commence our business.
- Who is eligible to act as a member of an OPC?
Only a natural person who is an Indian citizen and resident in India shall be eligible to act as a member and nominee of an OPC.
For the above purpose, the term “resident in India” means a person who has stayed in India for a period of not less than one hundred and eighty-two days during the immediately preceding one financial year.
- A person can be a member in how many OPCs?
A person can be a member of only one OPC.
- Is there any tax advantage on forming an OPC?
There is no specific tax advantage to an OPC over any other form. The tax rate is flat 30%, other tax provisions like MAT & Dividend Distribution Tax applies as they apply to any other form of company.
- Is there any threshold limits for an OPC to mandatorily get converted into either private or public company?
In case the paid-up share capital of an OPC exceeds fifty lakh rupees or its average annual turnover of immediately preceding three consecutive financial years exceeds two crore rupees, then the OPC has to mandatorily convert itself into a private or public company.
- What is the mandatory compliance that an OPC needs to observe?
The basic mandatory compliance are:-
a. At least one Board Meeting in each half of calendar year and time gap between the two Board Meetings should not be less than 90 days.
b. Maintenance of proper books of accounts.
c. Statutory audit of Financial Statements.
d. Filing of business income tax return every year before 30th September.
e. Filing of Financial Statements in Form AOC-4 and ROC Annual return in Form MGT 7.
- Who cannot form a One Person Company?
A minor shall not eligible becoming a member
a. foreign citizen
b. Non Resident
c. Any person incapacitated by contract