Thursday, November 5, 2020

Patent Registration

Patent Registration

Patent registration can be obtained in India for an invention. Patent registrations are not applicable for all inventions, and the invention must satisfy certain criteria to be patentable in India.

What can be patented?

As per the Patent Act, for an invention to be patentable, the invention must be a new product or process, involving an inventive step and capable of being made or used in industry. It means the invention, to be patentable, should be technical in nature and should meet the following criteria:

Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.

Inventive Step: The invention is not obvious to a person skilled in the art in light of the prior publication/knowledge/ document.

Industrially applicable: Invention should possess utility so that it can be made or used in an industry.

Who can file a patent application?

A patent application for an invention can be made by any of the following persons either alone or jointly with any other person:

The true and first inventor

True and first inventor‘s assignee

The legal representative of the deceased true and first inventor or his/her assignee

The Patent Act defines the word “person” as including any natural person, company or association or body of individuals or government body, whether incorporated or not. In the case of a proprietorship firm, the application should be made in the name of the Proprietor. In the case of a partnership firm, the names of all personally responsible partners must be included in the patent application.

An assignee can also be a natural person or other than a legal person such as a registered company, LLP, a Section 8 Company, an educational institute, or Government.

It is also important to note that true and first inventor does not include either the first importer of an invention into India or a person to whom an invention is first communicated from outside India. Th applicant is required to disclose the name, address, and nationality of the true and first inventor.

How to file a patent application?

A patent application can be filed electronically using Form-1 along with provisional/complete Specification, with the prescribed fee at the appropriate patent office.

Jurisdiction of a patent office is decided based on the following:

Place of residence, domicile, or business of the applicant (first mentioned applicant in the case of joint applicants).

Place from where the invention actually originated.

Address for service in India given by the applicant, when the Applicant has no place of business or domicile in India (Foreign applicants).

Mumbai Patent Office Jurisdiction

The States of Gujarat, Maharashtra, Madhya Pradesh, Goa, Chhattisgarh, the Union Territories of Daman & Diu and Dadra & Nagar Haveli fall under the Mumbai Patent Office jurisdiction.

Delhi Patent Office Jurisdiction

The States of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttar Pradesh, Uttarakhand, National Capital Territory of Delhi and the Union Territory of Chandigarh fall under the Delhi Patent Office jurisdiction.

Chennai Patent Office Jurisdiction

The States of Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu and the Union Territories of Pondicherry and Lakshadweep fall under the Chennai Patent Office jurisdiction.

Kolkata Patent Office Jurisdiction

Rest of India, the States of Bihar, Orissa, West Bengal, Sikkim, Assam, Meghalaya, Manipur, Tripura, Nagaland, Arunachal Pradesh and Union Territory of Andaman and Nicobar Islands fall under the Kolkata Patent Office jurisdiction.

Patent Application

A patent application is a plea for the grant of a patent for the invention described and claimed by the applicant. An application for this purpose generally comprises of a description of the invention, added with official forms and correspondence relevant to the application. Patent applications are of several types, and each one of them caters to a unique purpose.

Types of Patent

The types of a patent application are:

Provisional Application

Ordinary or Non-Provisional Application

Convention Application

PCT International Application

PCT National Phase Application

Patent of Addition

Divisional Application

The rest of the article covers these types in detail.

Provisional Application

A provisional application, also known as a temporary application, is filed when an invention is under experimentation and isn’t finalized. Moreover, it is a preliminary application which is filed before the patent office for claiming priority, as the Indian Patent Office follows the ‘First to File’ system (known popularly as the First-Come-First-Served-Basis). In technical terms, early filing of an invention will prevent the occurrence of any other related inventions from being designated as prior art to the inventor’s application.

To add more, this type of patent application is filed when an invention requires additional time for development. If an application is supported by a provisional specification, the applicant is necessitated to file a complete specification within twelve months from the date of filing a provisional application. A failure in this part would render the application void.

An application for this purpose must include a brief explanation of the invention and must be drafted in a meticulous manner so as to ensure that the priority rights are secured for the invention.

Ordinary or Non-Provisional Application

This type of application is filed if the applicant doesn’t have any priority to claim or if the application is not filed in pursuance of any preceding convention application. It must be supported by a complete specification, the likes of which must depict the invention in detail.

The complete specification can be filed through:

Direct Filing – wherein complete specification is initially filed with the Indian Patent Office without filing any corresponding provisional specification.

Subsequent Filing – wherein complete specification is filed subsequent to the filing of the corresponding provisional specification and claiming priority from the filed provisional specification.

A complete specification entails the following:

Title

A preamble to the invention.

The technical field of the invention.

Background of the invention.

Objects of the invention.

Statement of the invention.

A brief description of the drawings

A detailed description of the invention.

Claims

Abstract

Convention Application

A convention application is filed for claiming a priority date based on the same or substantially similar application filed in any of the convention countries. To avail a status of convention, an applicant is required to file an application in the Indian Patent Office within a year from the date of the initial filing of a similar application in the convention country. To re-iterate in simpler terms, a convention application entitles the applicant to claim priority in all the convention countries.

PCT International Application

As can be deciphered from its name, a PCT Application is an international application. Though the application does not provide for the grant of an international patent, it paves the way for a streamlined patent application process in many countries at one go. It is governed by the Patent Corporation Treaty and can be validated in up to 142 countries. Filing this application would protect an invention from being replicated in these designated countries.

Unlike other applications, it renders the application a time-frame of 30-31 months to enter into various countries from the international filing date or the priority date, thereby affording the applicant with additional time to access the viability of the invention.

Apart from this, it renders the following other benefits:

The application provides an International Search Report citing prior art, which discloses whether or not the invention is novel.

It provides an option for requesting an International Preliminary Examination Report, which is a report that contains an option on the patentability of the invention.

The aforementioned reports facilitate the applicant to make more informed choices early in the patent process, as he/she can amend the application to deal with any conflicting material. Also, the applicant would receive a glimpse of the patentability of the invention before incurring charges for filing and prosecuting the application in each country.

An applicant from India can file this application at:

The Indian Patent Office (IPO), which acts as the receiving office.

The International Bureau of WIPO, either after availing a foreign filing permit from IPO or after six weeks and 12 months of filing an application in India.

PCT National Phase Application

It is considered essential for an applicant to file a national phase application in each of the country wherein protection is sought for. The time-frame for filing the same is scheduled within 31 months from the priority date or the international filing date, whichever is earlier. The time-limit could be enhanced through National Laws by each member country.

With respect to the National Phase Application, the title, description, abstract and claims as filed in the International Application under PCT shall be considered as the Complete Specification. Apart from this, the regulations applicable for filing and processing an ordinary patent application is also applied here.

Patent of Addition

This application must be filed if the applicant discovers that he has come across an invention which is a slight modification of the invention which has already been applied for or patented by the applicant. It can only be filed if the invention doesn’t involve a substantial inventive step.

A patent of addition is only granted after the grant of the parent patent, and hence no separate renewal fee should be remitted during the term of the main patent. Moreover, it shall be granted for a term equal to that of the patent for the main invention, and therefore expires along with the main patent. The date of filing here shall be the date on which the application for patent of addition has been filed.

Divisional Application

An applicant may choose to divide an application and furnish two or more applications if a particular application claims for more than one invention. The priority date for these applications is similar to that of the parent application.

Filing Patent Application

While filing a patent application, provisional specifications or complete specifications can be filed by the applicant. The following is a list containing all documents that must be filed for obtaining patent registration:

Patent application in Form-1.

Proof of right to file application from the inventor. The proof of right can either be an endorsement at the end of the application or a separate agreement attached with the patent application.

Provisional specifications, if complete specifications are not available.

Complete specification in Form-2 within 12 months of filing of provisional specification.

Statement and undertaking under Section 8 in Form- 3, if applicable. Form 3 can be filed along with the application or within 6 months from the date of application.

Declaration as to inventorship in Form 5 for applications with complete specification or a convention application or a PCT application designating India. Form-5 or Declaration as to inventorship can be filed within one month from the date of filing of application if a request is made to the Controller in Form-4.

Power of authority in Form-26, if the patent application is being filed by a Patent Agent. In case a general power of authority, then a self-attested copy of the same can be filed by the Patent Agent or Patent Attorney.

Convention Application (under Paris Convention).

PCT National Phase Application wherein requirements of Rule 17.1(a or b) or has not been fulfilled.

Note: Priority document must be filed along with the application or before the expiry of eighteen months from the date of priority, to enable the early publication of the application.

If the Application pertains to a biological material obtained from India, the applicant is required to submit the permission from the National Biodiversity Authority any time before the grant of the patent. However, it is sufficient if the permission from the National Biodiversity Authority is submitted before the grant of the patent.

The Application form should also indicate clearly the source of the geographical origin of any biological material used in the specification.

All patent applications must bear the signature of the applicant or authorized person or Patent Attorney along with name and date.

Provisional or complete specification must be signed by the agent/applicant with the date on the last page of the specification. The drawing sheets attached should also contain the signature of an applicant or his agent in the right-hand bottom corner.

Contact Mobile & WhatsApp 9866512479

Email contact@bestlegalscribe.com

www.bestlegalscribe.com

Thursday, October 29, 2020

Trademark Application filing - Documents / information required

Documents / information required for Trademark Application filing:

The entire process is Online.

You may email Soft copies of the following documents / information:

  • Identity proof of the Trademark owner - It can be PAN card, Passport or Aadhaar.
  • Address proof – It can be PAN card, Passport or Aadhar card or Voter’s Card.
  • Mobile number.
  • Email ID
  • Name of the business
  • Business activity
  • Business Logo
  • MSME Udyam Certificate - The government fees for Trademark application filing for Companies having MSME Udyam Registration Certificate is Rs. 4,500/-. However, they have to pay Rs. 9,000/- to file if they do not possess MSME Udyam Registration Certificate.
  • Signed Form 48 - Form 48 provides authorisation to Trademark Attorney to file your Trademark application. (Format will be provided by Trademark Attorney)
  • User Affidavit (Format will be provided by Trademark Attorney)
  • Partnership Deed and Firm Registration Certificate (in case of Partnership Firm)
  • Certificate of Incorporation (in case of Pvt Ltd. Co., or LLP)
  • Any other existing Registrations / Licences (GST Registration / Labour Licence / Food Licence / Drug Licence) of the business.
  • Contact Mobile & WhatsApp 9866512479

Email contact@bestlegalscribe.com

www.bestlegalscribe.com

Wednesday, October 28, 2020

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Monday, October 19, 2020

LLP (Limited Liability Partnership) Registration

 Limited Liability Partnership (LLP) Registration

Limited Liability Partnership (LLP) was introduced in India by way of the Limited Liability Partnership Act, 2008. The basic premise behind the introduction of Limited Liability Partnership (LLP) is to provide a form of business entity that is simple to maintain while providing limited liability to the owners. Since its introduction in 2010, LLPs have been well received with over one lakh registrations in India. 

LLP is one of the easiest types of business to incorporate and manage in India. With an easy incorporation process and simple compliance formalities, LLPs are preferred by Professionals, Micro and Small businesses that are family-owned or closely-held. Since LLPs are not capable of issuing equity shares, LLP should NOT be chosen for any business that has plans for raising equity funds from Angel Investors, Venture Capitalist or Private Equity Funds. 

Difference between LLP & Partnership

Cost: The cost for registration of LLP is normally higher than the cost for registration of a partnership firm.

Authority: LLPs are registered in India under the Ministry of Corporate Affairs, Central Government. Partnership firms are registered with the Registrar of Firms, controlled by the respective State Government in which the firm is registered. 

Limited Liability Protection: The main advantage of a Limited Liability Partnership over a traditional partnership firm is that in a LLP, one partner is not responsible or liable for another partner's misconduct or negligence. A LLP also provides limited liability protection for the owners from the debts of the LLP. However, unlike private limited company shareholder, the partners of an LLP have the right to manage the business directly. 

Number of Partners: LLPs and Partnership Firms must have a minimum of two partners to be registered. Post incorporation, an LLP can have unlimited partners. In case of a Partnership Firm, if the number of partners at any time reduces below the mandatory minimum of 2 due to death, incapacitation or resignation of a Partner, the partnership firm would stand dissolved. On the other hand, in case of an LLP, if the number of Partners reduces below 2, the sole Partner can still find a new Partner to fill the position without dissolution of the LLP. 

Difference between LLP & Company

Private limited company registration process and the LLP registration process are similar with some differences in the documents and forms filed for incorporation. 

Cost: The cost for the incorporation of a private limited company or an LLP is almost the same.

Features: Both LLP and Private Limited Company offer many of the same features. LLP and Private Limited Company are both separate legal entities and have assets and liabilities that are separate from that of the promoters. LLP and Private Limited Company are both transferable, though a Private Limited Company offers more flexibility when it comes to transferring or sharing of ownership. LLP and Private Limited Company both have perennial life, unless and otherwise closed by the promoters or competent authority. 

Fund-raising: A private limited company can raise funds from Angel Investors, Private Equity Funds, Venture Capitalists, banks and NBFCs. An LLP can raise funds from Partners, Banks and NBFCs. 

Non-Resident Indian (NRI) & Foreign Ownership of LLP

Post changes to FDI regulations on 10th, November 2015, 100% FDI in LLP is permitted under the automatic route. In most sectors, 100% FDI in LLP is allowed through the automatic route, and there are no FDI-linked performance conditions. In addition, LLPs will also be permitted to make downstream investment in another company or LLP in sectors in which 100% FDI is allowed under the automatic route. Therefore, FDI in LLP is now permitted, and NRIs or Foreign Nationals can start or invest in an LLP. 

Documents Required for LLP Incorporation 

The following are the documents required for registration of LLP in India:

 For the Partners

  • PAN Card or Passport for Foreigners.
  • Driver’s license or Aadhaar card, residence card or election identity card or any other identity proof issued by the Government.
  • Less than 1-month old bank statement or telephone bill. 

Registered Office Proof

The authorization from the Landlord (as per Landlord's Name mentioned in the Electricity Bill or Gas Bill or Water Bill or Property Tax Receipt or Sale Deed) to use the premises by the company as its registered office. This is usually referred to as NOC from Landlord; AND 

Proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, which is not older than one month. 

LLP Registration Process

The average time taken to complete an LLP registration is about 15 - 20 working days, subject to government processing time and client document submission. At the start of the engagement, your Engagement Manager will reach out to you for the collection of the necessary information or documents for registration of LLP. The data can be submitted online through WhatsApp or email. 

Once the information is received, it is verified by the Engagement Manager, the process for obtaining Digital Signatures for the Partners of the LLP would be initiated. On submission of the digital signature application, the applicant would have to complete OTP verification and a video KYC check. In parallel to the digital signature application process, we also file a request with the MCA for reserving the name of the LLP - you had selected. 

On obtaining the name approval and the digital signatures, we would draft all the incorporation documents for the registration of the LLP and sent it to the Partners for signature. All the Partners must sign the document and send a scanned copy of the signed document. 

The signed incorporation documents are submitted by us along with the application for the incorporation of LLP to the MCA. The approval from MCA can take anywhere between 3 to 6 working days. Once the approval is obtained, the LLP would be incorporated, and we begin the process of helping you obtain PAN for the LLP and opening of bank account in the name of the LLP. In parallel, we also draft the LLP Partnership Deed. All the partners of the LLP must sign the LLP Partnership Deed on stamp paper, and the signed copy must be uploaded within 15 days of incorporation. The signed LLP partnership deed is then verified and uploaded on the MCA portal within 20 days of incorporation to complete the LLP registration process. 

Post-Incorporation LLP Compliance

After incorporation you need to maintain the basic accounting and compliance for your LLP.

The following are compliance that a LLP must complete each year:

Income Tax Return: LLPs must file income tax return using Form ITR 5. Form ITR 5 can be filed online through the income tax website using the digital signature of the designated partner. 

MCA Annual Return: LLP Form 11 is due on or before 30th of May each year. Form 11 contains details of the number of designated partners, total number of partners, total contribution received by all partners, details of body corporate as partners and summary of partners. 

In addition to LLP Form 11, Form 8 must be filed within 30 days from the end of 6 months of the financial year along with some prescribed fee. Hence, LLP Form 8 would be due on or before 30th October of each financial year. 

In addition to the above, GST registration, GST return filing and TDS return filing would be required for the LLP - based on the sales turnover and various other criteria. 

Contact Mobile 9866512479

email contact@bestlegalscribe.com

www.bestlegalscribe.com

Trademark / Brand / Logo Registration

 Trademark:

A trademark is a unique identity that differentiates your product / service in the market. It can be a unique word, name, logo, numeral or any other identifier. It is essentially a representation of the owner's company, name / brand. A registered trademark is an invaluable asset to your company as it is used to protect your company's brand. Registration ensures protection of your unique logo / brand by restricting usage by other competitors as identical/ similar marks cannot be registered.

Trademark owners have the right to use their mark exclusively for a period of 10 years from the date of registration.

The following are the advantages of registering a Trademark:

Legal Protection:

The main advantage of registering trademarks is that your goods and services would have a unique identity and a brand name. The owners would have exclusive rights over the mark and would be able to take action or sue for damages in the case of unauthorized usage.

Asset Creation:

Registered trademarks may be bought, sold or leased just like any other asset attached to an individual / company. It becomes part of the intellectual property that is owned by an individual / company.

Brand Popularization:

A registered trademark will make it easier for customers to find your products in the market. It builds the reputation of your product and creates an identity which is unique from that of existing products in the market and thereby, acts as an effective commercial tool. The logo can represent the vision and individual characterization of your company and products.

Goodwill:

Registered trademarks help in customer recognition and the extra earnings that follow because customers want to acquire your product due to increased recognition of your brand and name.

Customers relate the quality of a product with its brand name, and this will help in attracting new customers as they will be able to differentiate the quality of a product by your logo or brand name.

Protection for 10 years:

Protection for 10 years: Every registered trademark is valid for 10 years and may be renewed for another 10 years with ease by merely filing a trademark renewal application. It is cost-efficient and helps your company create and maintain a unique image.

Contact Mobile 9866512479

Email contact@bestlegalscribe.com

www.bestlegalscribe.com

Wednesday, September 2, 2020

File Overdue MCA Returns & Avoid Penalty under Fresh Start 2020 scheme of Government of India for default Companies / LLPs


File Overdue MCA Returns & Avoid Penalty under Fresh Start 2020 scheme of Government of India for default Companies / LLPs

The MCA (Ministry of Corporate Affairs, Government of India) had announced the Fresh Start 2020 Scheme to provide prosecution immunity and penalty waiver for companies and LLPs that have failed to file any overdue returns. Under the scheme, companies and LLPs can file any overdue MCA return without payment of any penalty until 30th September 2020. Directors or Partners of the companies/LLPs availing the scheme will also be provided with prosecution immunity. 

We request you to contact us before 10th of September 2020 if you have any defaulting company or LLP. In case you would like us to do a free check of your company or LLP compliance, please contact us today 

WhatsApp 9866512479

Email: contact@bestlegalscribe.com 

www.bestlegalscribe.com

Tuesday, September 1, 2020

Annual Compliances of Section-8 Companies

Annual Compliances of Section-8 Companies
A Section 8 company is required to adhere to the compliance levied by Registrar of Companies (ROC) and Income tax authorities. Failure to  fulfil their compliance requirements results in paying heavy penalties, and chances are such organizations and their directors’ may even get disqualified for a period of time.

Appointment of An Auditor: Under section 139 of the Companies Act 2013, it is mandatory for companies to appoint an auditor. The books of accounts and annual returns of the company shall be audited by the statutory auditor who will be appointed for a period of 5 years.

Maintenance of Statutory Registers: The company is required to maintain a statutory register consisting of members, loans obtained, charges created, its directors, etc. as enumerated under section 8 of the companies act 2013.

Convening Meeting: Annual general body meeting is to be conducted once a year within 6 months of the end of financial year and other board meetings have to be conducted.
Boards’ Report: The Board of Directors of the company shall file their boards’ report in an appropriate manner, consisting of all the financial statements and other annexures. The board report is required to be filed in Form AOC-4.

Preparation of Financial Statement of The Company: The company will get the  balance sheet, profit and loss A/C, cash flow statement and other financial statements prepared by the statutory auditor which is to be filed with ROC.

Tax Returns: The ITR is required to be filed at the end of every assessment year before 30th September.

Filing of Financial Statements: The financial statement shall be filed in the appropriate form (E-FORM AOC-4), within 30 days from the date of annual general meeting.

Filing Annual Returns: The annual return containing all the information like management details, shareholders’ details will be filed in Form MGT-7 with Registrar of Companies (ROC), within 60 days of the annual general meeting.

Contact Mobile & WhatsApp 9866512479


Monday, August 31, 2020

Limited Liability Partnership (LLP) Registration

Limited Liability Partnership (LLP) Registration

Limited Liability Partnership (LLP) was introduced in India by way of the Limited Liability Partnership Act, 2008. The basic premise behind the introduction of Limited Liability Partnership (LLP) is to provide a form of business entity that is simple to maintain while providing limited liability to the owners. Since its introduction in 2010, LLPs have been well received with over one lakh registrations in India. 

LLP is one of the easiest types of business to incorporate and manage in India. With an easy incorporation process and simple compliance formalities, LLPs are preferred by Professionals, Micro and Small businesses that are family-owned or closely-held. Since LLPs are not capable of issuing equity shares, LLP should NOT be chosen for any business that has plans for raising equity funds from Angel Investors, Venture Capitalist or Private Equity Funds. 

Difference between LLP & Partnership

Cost: The cost for registration of LLP is normally higher than the cost for registration of a partnership firm.

Authority: LLPs are registered in India under the Ministry of Corporate Affairs, Central Government. Partnership firms are registered with the Registrar of Firms, controlled by the respective State Government in which the firm is registered. 

Limited Liability Protection: The main advantage of a Limited Liability Partnership over a traditional partnership firm is that in a LLP, one partner is not responsible or liable for another partner's misconduct or negligence. A LLP also provides limited liability protection for the owners from the debts of the LLP. However, unlike private limited company shareholder, the partners of an LLP have the right to manage the business directly. 

Number of Partners: LLPs and Partnership Firms must have a minimum of two partners to be registered. Post incorporation, an LLP can have unlimited partners. In case of a Partnership Firm, if the number of partners at any time reduces below the mandatory minimum of 2 due to death, incapacitation or resignation of a Partner, the partnership firm would stand dissolved. On the other hand, in case of an LLP, if the number of Partners reduces below 2, the sole Partner can still find a new Partner to fill the position without dissolution of the LLP. 

Difference between LLP & Company

Private limited company registration process and the LLP registration process are similar with some differences in the documents and forms filed for incorporation. 

Cost: The cost for the incorporation of a private limited company or an LLP is almost the same.

Features: Both LLP and Private Limited Company offer many of the same features. LLP and Private Limited Company are both separate legal entities and have assets and liabilities that are separate from that of the promoters. LLP and Private Limited Company are both transferable, though a Private Limited Company offers more flexibility when it comes to transferring or sharing of ownership. LLP and Private Limited Company both have perennial life, unless and otherwise closed by the promoters or competent authority. 

Fund-raising: A private limited company can raise funds from Angel Investors, Private Equity Funds, Venture Capitalists, banks and NBFCs. An LLP can raise funds from Partners, Banks and NBFCs. 

Non-Resident Indian (NRI) & Foreign Ownership of LLP

Post changes to FDI regulations on 10th, November 2015, 100% FDI in LLP is permitted under the automatic route. In most sectors, 100% FDI in LLP is allowed through the automatic route, and there are no FDI-linked performance conditions. In addition, LLPs will also be permitted to make downstream investment in another company or LLP in sectors in which 100% FDI is allowed under the automatic route. Therefore, FDI in LLP is now permitted, and NRIs or Foreign Nationals can start or invest in an LLP. 

Documents Required for LLP Incorporation 

The following are the documents required for registration of LLP in India:

 For the Partners

  • PAN Card or Passport for Foreigners.
  • Driver’s license or Aadhaar card, residence card or election identity card or any other identity proof issued by the Government.
  • Less than 1-month old bank statement or telephone bill. 

Registered Office Proof

The authorization from the Landlord (as per Landlord's Name mentioned in the Electricity Bill or Gas Bill or Water Bill or Property Tax Receipt or Sale Deed) to use the premises by the company as its registered office. This is usually referred to as NOC from Landlord; AND 

Proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, which is not older than one month. 

LLP Registration Process

The average time taken to complete an LLP registration is about 15 - 20 working days, subject to government processing time and client document submission. At the start of the engagement, your Engagement Manager will reach out to you for the collection of the necessary information or documents for registration of LLP. The data can be submitted online through WhatsApp or email. 

Once the information is received, it is verified by the Engagement Manager, the process for obtaining Digital Signatures for the Partners of the LLP would be initiated. On submission of the digital signature application, the applicant would have to complete OTP verification and a video KYC check. In parallel to the digital signature application process, we also file a request with the MCA for reserving the name of the LLP - you had selected. 

On obtaining the name approval and the digital signatures, we would draft all the incorporation documents for the registration of the LLP and sent it to the Partners for signature. All the Partners must sign the document and send a scanned copy of the signed document. 

The signed incorporation documents are submitted by us along with the application for the incorporation of LLP to the MCA. The approval from MCA can take anywhere between 3 to 6 working days. Once the approval is obtained, the LLP would be incorporated, and we begin the process of helping you obtain PAN for the LLP and opening of bank account in the name of the LLP. In parallel, we also draft the LLP Partnership Deed. All the partners of the LLP must sign the LLP Partnership Deed on stamp paper, and the signed copy must be uploaded within 15 days of incorporation. The signed LLP partnership deed is then verified and uploaded on the MCA portal within 20 days of incorporation to complete the LLP registration process. 

Post-Incorporation LLP Compliance

After incorporation you need to maintain the basic accounting and compliance for your LLP.

The following are compliance that a LLP must complete each year:

Income Tax Return: LLPs must file income tax return using Form ITR 5. Form ITR 5 can be filed online through the income tax website using the digital signature of the designated partner. 

MCA Annual Return: LLP Form 11 is due on or before 30th of May each year. Form 11 contains details of the number of designated partners, total number of partners, total contribution received by all partners, details of body corporate as partners and summary of partners. 

In addition to LLP Form 11, Form 8 must be filed within 30 days from the end of 6 months of the financial year along with some prescribed fee. Hence, LLP Form 8 would be due on or before 30th October of each financial year. 

In addition to the above, GST registration, GST return filing and TDS return filing would be required for the LLP - based on the sales turnover and various other criteria. 

Contact Mobile 9866512479

email contact@bestlegalscribe.com

www.bestlegalscribe.com

Sunday, August 23, 2020

One Person Company (OPC) Registration

One Person Company (OPC) Registration

The concept of One Person Company in India was introduced through the Companies Act, 2013 to support entrepreneurs who on their own can start a venture by allowing them to create a single person economic entity. One of the biggest advantages of a One Person Company (OPC) is that there can be only one member in an OPC, while a minimum of two members are required for incorporating and maintaining a Private Limited Company or a Limited Liability Partnership (LLP). Like a Private Limited Company, a One Person Company is a separate legal entity from its promoter, offering limited liability protection to its sole shareholder, while having continuity of business and being easy to incorporate. 

Though a One Person Company allows a lone Entrepreneur to operate a corporate entity with limited liability protection, an OPC does have a few limitations. For instance, every One Person Company (OPC) must nominate a nominee Director in the MOA and AOA of the Company, who will become the owner of the OPC in case the sole Director is disabled. Also, a One Person Company must be converted into a Private Limited Company if it crosses an annual turnover of Rs.2 crores and must file audited financial statements with the Ministry of Corporate Affairs at the end of each Financial Year like all types of Companies. Therefore, it is essential for the Entrepreneur to carefully consider the features of a One Person Company before incorporation. 

OPC in India

The concept of One Person Company in India was introduced by Dr. Jamshed J. Irani in his Report on Company Law dated 31st May, 2005. As per the report, Dr. Irani recommended that with the increasing use of information technology and emergence of a strong service sector in India, it was time for the Government to empower entrepreneurs who on their own are capable of developing ideas and participating in the marketplace. He suggested that entrepreneurs who on their own are capable of starting a venture should not be made to do it through an association of persons, and should be able to create a single person economic entity in the form of ‘One Person Company’. Further, it was also suggested that such an entity may be provided with a simpler regime through exemptions so that the single entrepreneur is not compelled to fritter away his time, energy and resources on procedural matters. 

This led to the introduction of “One Person Company” in the Companies Bill 2013, which got its assent in the Lok Sabha on 18 December 2012 and in the Rajya Sabha on 08 August 2013. After obtaining the assent of the President of India on 29 August 2013, it has become the Companies Act, 2013. 

Benefits of One Person Company

Till the introduction of One Person Company in India, the Limited Liability and Continuous Existence feature was only available to an association of persons such as a Private Limited Company or Limited Liability Partnership or a Limited Company. With the introduction of One Person Company, the limited liability and continuous existence feature is now available for One Person Company also, which is an entity with just one member. As One Person Company has just one member, it is necessitated by the law for the single member of the Company to designate another person (as his/her nominee to continue the business activities of the OPC) in the Memorandum of Association, who on the event of subscriber’s death or incapacity shall become the person to contract. This mechanism provides an adequate safeguard to ensure continuous existence of the entity even in case of incapacitation of the single member. 

All companies in India are required to hold an annual general meeting each year, in addition to holding any other meetings and not more than fifteen months should elapse between the dates of subsequent annual general meetings. One Person Company is exempt from holding an annual general meeting or extraordinary general meetings. The resolution signed by the single Director and entered into the minutes book is sufficient, in lieu of a General / Extraordinary General Meeting. Every company in India is required to prepare and file financial statements that includes balance sheet, profit and loss account, cash flow statement, statement of changes in equity and explanatory notes. In case of One Person Company, cash flow statement is not required. 

OPC Registration Process

Before exploring the concept of a one person company, let us have a brief understanding of the various types of companies that can be formed. 

A company can be established for a lawful purpose by the following number of persons: 

  • Seven or more persons, in case of a public limited company.
  • Two or more persons, in case of a private limited company.
  • One person, in case of a one-person company.

 OPC Requirements

Unlike a private limited company, a one person company has certain restrictions associated with its incorporation. Hence, before starting an OPC registration, its essential to understand the constraints and ensure the promoter is eligible as per the Companies Act to register an OPC. 

  1. Only a natural person who is an Indian Citizen and resident in India can incorporate OPC.
  2. It means Legal entities like Company or LLP cannot incorporate a OPC.
  3. Resident in India means a person who had resided in India for a period not lesser than 182 days in the prior calendar year.
  4. The minimum authorised capital is Rs 1,00,000/-.
  5. A nominee must be appointed by the promoter during incorporation.
  6. A person can incorporate not more than one OPC.
  7. Businesses involved in financial activities cannot be incorporated as a OPC.
  8. OPC must be converted in to a private limited company when paid-up share capital exceeds Rs.50 lakhs or turnover crosses Rs.2 crores. 

Thus, a one-person company can be formed by an Indian citizen who has his/her presence in India for at least 182 days during the immediately preceding calendar year. Finally, an OPC is prohibited from having a minor as its member. 

Nominee in One Person Company

The rules for incorporation of one person company requires that the sole member of a One Person Company should include the name of a nominee in the Company's MOA, who will undertake the entity after the expiry or incapacity of the promoter. Moreover, the document must contain the written consent of the nominee, which must also be filed with the Registrar during incorporation along with the MOA and AOA. 

Withdrawal of Consent

The nominee is entitled to withdraw his/her consent, in which case the sole member is required to nominate another member as a legal heir within 15 days of the notice of withdrawal. The nomination of new person must be intimated to the Company through a written consent in Form INC-3. The Company, in turn, is required to file the notice of withdrawal of consent along with the intimation of the new nominee with the Registrar of Companies in Form INC-4. 

Change of Nominee

The sole member of a 'One Person Company' is empowered to change the nominee of the Company for any reason whatsoever, by providing notice in writing to the Company. Again, the new nominee must consent to the nomination in Form INC-3, and the Company must file the notice of change and consent of the nominee with the Registrar along with the applicable fee, within 30 days of receiving the intimation of change. 

New Nominee Appointment

If a nominee becomes in-charge of the one person company due to the cessation of the original member's term owing to the death or incapacity of the latter, the new member must appoint a nominee as a replacement. 

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Tuesday, August 11, 2020

Sole-Proprietorship

Sole-Proprietorship

The perception of doing business varies from person to person, as the choice of a business entity depends on its object, nature and scope. Before deciding on a business structure, several factors are critical viz.   

  • Business activity and its nature and scope
  • Working capital requirement
  • Proprietor’s dependence
  • Concern on taxes to be paid for doing the business

 However, to choose a particular type of business structure, there is no defined formula.

The factor that organizes the process to conduct business in an optimized manner is known as a business organization. It is essentially a structured approach of establishing and maintaining a relationship among men, material, and machinery to carry on the business efficiently for earning profits.

Most of the individuals who manage their business to earn their daily bread are sole-proprietors. The small business entities in India fall under the category of unorganized sector. 

To start and to operate a sole-proprietorship in India, there are no standard legal compliances. However, registration with the local authorities is necessary to secure a license for a business name. 

 At this backdrop, a question arises, who are eligible to start a sole-proprietorship: 

  • Any Indian born citizens with a valid PAN can start and operate a sole-proprietorship
  • No other compliance is required

 Who could be a sole-proprietor? 

  • Indian citizens by birth or by citizenship
  • Persons holding PAN & Aadhaar

Even though a business entity can be established and maintained in different forms, each of the businesses has its own merits and demerits:

Merits of sole-proprietorship: 

  • Very little compliance to adhere
  • Zero interference from Government
  • Minimal wastage of time for approvals
  • Working capital as per business need
  • Single PAN for self and business entity
  • Hassle-free opening of current account
  • Proprietorship registration
  • Single ITR-3 to present the profit or loss with the personal income
  • No need to distribute the profit

Demerits of sole-proprietorship: 

  • No separate legal entity from its proprietorship
  • Losses in business may impact the personal assets of the proprietor
  • Due to a single PAN, transferring the profits to someone to meet future needs is difficult.
  • In case of the death of a proprietor, the proprietorship also ceases. 
  • Difficult to secure investments
  • Difficult to earn and identify

Registration of sole-proprietorship 

Any individual desiring to start a sole-proprietorship has to obtain a business license or a tax license as presented below: 

  • Shops and Establishment license
  • GST Registration
  • Trademark / Brand Name / Logo Registration  (so that no one-else should use your similar / identical name, Logo)
  • MSME Udyam Registration (for availing collateral free Bank loans and government subsidies)
  • FSSAI Registration (for doing business on food and related articles)
  • Import and Export Code (for export-import business)
  • Copyright (for persons engaged in literary & artistic business) 

Documents for sole-proprietorship registration: 

  • Proprietor’s PAN Card & Aadhaar card
  • Proprietor’s name or the business name
  • Mobile number and email address
  • Rental agreement with NOC and a utility bill viz. electricity bill / water bill / property tax receipt / BSNL Telephone bill 

A first-time entrepreneur who wishes to taste the business out of a passion may put in the best efforts, after weighing the options available, to remain independent, rather than working for someone. Unlike a partnership firm or a corporate, sole-proprietorship is an easy way of registering for a business due to minimal government intervention, besides hassle-free conduct of business.  

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Company Registration Process and Documents required

Company Registration Process and Documents required

Entrepreneurs in the process of beginning a Company registration are interested in knowing about the list of documents required for the process. In this article, we provide details and description of the documents required for company registration.

Directors: Indian Nationals

The following documents are mandatory for Indian Nationals for incorporation of a Company in India:

PAN Card: PAN Card copy of the proposed Directors of the Company will be required for Company Registration. PAN or Permanent Account Number is a unique identification number issued by the Department of Income Tax in India. It is mandatory for Directors who are Indian Nationals to submit PAN during the incorporation process.

Note: The name on the PAN Card will be used by the Ministry of Corporate Affairs for all matters pertaining to the company. Hence, in case of mistake in the name mentioned in the PAN Card or name change due to marriage or any other reason, the PAN Card must be first changed.

Address Proof: In addition to the PAN Card copy, the proposed Director must submit an address proof. The address proof submitted must have the name of the Director as mentioned in the PAN Card and the most current address of the proposed Director. Further, the document must also not be older than 2 months.

The following documents are acceptable Address proof for Indian Nationals.

  • Aadhaar Card
  • Passport
  • Voter Identity Card
  • Driving License
  • Electricity Bill
  • Telephone Bill

 Residential Proof: In addition to the address proof, a residential proof must be submitted during the incorporation of the Company to validate the current address of the proposed Director. As applicable for address proof, the residential proof must also contain the name of the Director as mentioned in the PAN Card and must not be older than two months.

The following documents are acceptable residential proof:

  • Bank Statement
  • Electricity Bill
  • Telephone Bill

 Director: Foreign Nationals

The following documents are mandatory for Foreign Nationals for incorporation of company in India:

Passport: In case of Foreign Nationals, Passport is a mandatorily required as a proof of identity. The Passport must also be Notarized or Apostilled in the country it was issued. In case the document is in foreign language, then it must be translated by an official translator to English and notarized or apostilled. Further, if the Passport does not contain date of birth of the holder, then an additional document indicating the date of birth of the Director must be provided, duly certified or attested or notarized or apostilled.

Address Proof: In addition to the Notarized or Apostilled Passport copy, the proposed Foreign Director must submit an address proof which is also notarized or apostilled. The address proof submitted must have the name of the Foreign Director as mentioned in the Passport and the most current address of the Director. Further, the document must also not be older than 1 year for foreign nationals.

The following documents are acceptable address proof for Foreign Nationals.

  • Driving License
  • Residence Card
  • Bank Statement
  • Government issued form of identity containing address.

In case the document is in a foreign language, then it must be translated by an official translator and notarized.

Residential Proof: In addition to the address proof, a residential proof must be submitted during the incorporation of the Company to validate the current address of the Foreign Director. As applicable for address proof, the residential proof must also contain the name of the Foreign Director as mentioned in the Passport and must not be older than one year.

The following documents are acceptable residential proof of Foreign Director:

  • Bank Statement
  • Electricity Bill
  • Telephone Bill

In case the document is in a foreign language, then it must be translated by an official translator and notarized.

Registered Office Proof:

In addition to providing identity, address and residential address for the Directors, proof must be provided to validate the registered office address of the Company.

The following documents must be submitted as proof of registered office during the company registration process.

The registered document of the title of the premises of the registered office in the name of the company; or The 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;

In addition to the above, the following must also be provided as proof of registered office:

The authorization from the Landlord (Name mentioned in the Electricity Bill or Gas Bill or Water Bill or Property Tax Receipt or Sale Deed) to use the premises by the company as its registered office. This is usually referred to as NOC from Landlord; and Proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, which is not older than two months.

Shareholder: Indian National or Foreign National

The identity and address proof as detailed in the article must be submitted for all the shareholders of the Company (i.e., subscribers to the Memorandum of Association (MOA) and Articles of Association (AOA).

Shareholder: Corporate Entity or Artificial Judicial Person

In case one of the shareholder or subscriber to the MOA and AOA is a Corporate Entity (Company, LLP, etc.,), then Certificate of Incorporation of the Body Corporate must be attached along with the resolution passed by the Body Corporate to subscribe to the shares of the company under incorporation.

In addition to the above proofs and documents, a number of documents like INC-9, MOA, AOA would be drafted by a Professional. These legal documents made specifically for the incorporation, must be signed and notarized by the promoters of the Company.

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Documents required - Trademark Application Registration

Trademark Application Registration - Documents required

The entire process is Online.

You may email Soft copies of the following documents and information:

  •  Aadhaar card
  • PAN card
  • Mobile number
  • Email ID
  • Name of the business
  • Business description
  • Business Logo
  • MSME Udyam Certificate
  • GST Regn. Certificate
  • Partnership Deed and Firm Registration Certificate (in case of Partnership Firm)
  • Certificate of Incorporation (in case of Pvt Ltd. Co.,)

 Any other existing Registration Certificates of the business.

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Monday, August 10, 2020

Non-Profit Organization - Society - Trust - Section 8 Company Registration

Non-Profit Organization – Society - Trust - Section 8 Company Registration

In India, a non-profit organisation can be registered as Trust by executing a Trust deed or as a Society under the Registrar of Societies, or as a non-profit company under Section 8 Company of the Companies Act, 2013. A Section 8 Company is the same as Section 25 company under the old Companies Act, 1956. Under the new Companies Act 2013, Section 25 (as per the old Act) has now become Section 8.

As per Section 8(1a, 1b, 1c) of the Companies Act, 2013, a Section 8 company can be established for the “promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object”. The Act further states that a Section 8 company can purse the above objects subject to the condition that it “intends to apply its profits, if any, or other income in promoting its objects” and “intends to prohibit the payment of any dividend to its members.”. In simple terms, a Section 8 company must promote a public cause and the proceeds generated by the entity must solely be used to support the stated public cause(s) only.

Section 8 Company Incorporation Process

Private limited company and Section 8 company registration procedure are very similar to each other. A minimum of two Directors are required to start a Section 8 company. One of the Director must be an Indian Citizen and Indian Resident, whereas one or more persons acting as Director can be an Indian National or Foreign National. In addition to the required number of persons, a registered office address within India would be required for incorporation of Section 8 Company.

Section 8 Company would be subject to the following conditions:

(1) has in its objectives the promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object

(2) intends to apply its profits if any, or other income in promoting its objects; and

(3) intends to prohibit the payment of any dividend to its members, the Central Government may, by licence issued in such manner as may be prescribed, and on such conditions as it deems fit, allow that person or association of persons to be registered as a limited company under this section without the addition to its name of the word “Limited”, or as the case may be, the words “Private Limited”, and thereupon the Registrar shall, on application, in the prescribed form, register such person or association of persons as a company under this section.

(4) the company registered under this section shall enjoy all the privileges and be subject to all the obligations of limited companies.

Digital Signature for Directors

A Trust in India is controlled by the Trustees mentioned in the Trust Deed. A Section 8 Company would be controlled by the Board of Directors, similar to a private limited company. During the incorporation process, the digital signature certificate is obtained for the proposed Directors. To obtain digital signature and DIN, the proposed Directors must submit a copy of their:

PAN Card or Aadhar Card / Driving License / Passport / Election ID / Other Government Issued ID

Once the documents are submitted, the applicants must complete an OTP and eKYC procedure through a smartphone to obtain a digital signature in their name.

Section 8 Company Name Approval

In parallel to the digital signature application processing, the name approval application can be initiated for the Section 8 Company to the MCA. The name of a Section 8 Company must end with the words prescribed for this purpose like foundation, forum, association, federation, chambers, confederation, council, electoral trust, etc. The name approval process can be completed in 24-72 hours.

Incorporation Certificate

Once the name approval and digital signatures are obtained, an Incorporation Expert would prepare the MOA, AOA and incorporation application for the Section 8 Company. All the Directors must sign the documents. Once the documents are signed and verified, the incorporation application is filed with the MCA.

On approval of the incorporation application, the Government would issue the incorporation certificate, PAN and TAN for the Section 8 Company. The entity can now use the details above to open a Current account in any Bank for conducting its day-to-operations.

80G Certificate for Section 8 Companies

80G is a certificate that exempts a person, making a donation to a Section 8 company from part or fully paying taxes on the donation amount. There is, however, a maximum allowable deduction criterion. The criterion is if the aggregate of the amount you donate exceeds 10% of the total gross income, then the excess amount will not qualify for tax benefit. 80G certificates made its way into law book in the year 1967-68, and it continues to be an important tax-saving mechanism for millions of taxpayers in India.

12A Registration for Section 8 Companies

12A registration is a one-time registration obtained by most Trusts, right after incorporation to be exempted from paying income tax. Section 8 Company, Trusts and NGOs having 12A registration enjoy exemption from paying income tax on the surplus income of the Trust or NGO. Income tax exemption is available for all non-profit NGOs. Hence, it is important for all Trusts, NGOs and other Not-for-Profit organizations to be aware of Section 12A of Income Tax Act and obtain the same, soon after incorporation of the Trust or NGO.

FCRA Registration for Section 8 Companies

Organizations seeking foreign contributions for definite cultural, social, economic, educational or religious programmes may obtain FCRA registration or receive foreign contribution through “prior permission” route. It is preferable for an FCRA applicant to be a Trust or Society or a Section 8 Company. The not-for-profit entity must have also been in existence for a minimum of three years while making the FCRA application. It should also not have received any foreign contribution prior to that without the Government’s approval. Additionally, the entity seeking registration should have spent at least Rs.10,00,000/- over the last three years on its aims and objects, excluding administrative expenditure. Statements of Income & Expenditure, duly audited by Chartered Accountant, for last three years are to be submitted to substantiate that it meets the financial parameter.

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