Incorporation of a Private Company

Stamp duty

The Memorandum of Association and Articles of Association are required to be stamped adequately in the prescribed manner and mode. Rules 10 and 39 of Schedule I of the Indian Stamp Act, prescribe the rates of stamp duty payable on the Memorandum of Association and Articles of Association. The different States prescribe different rates of stamp duty applicable to the companies incorporated in their respective territories.

Stamp duty should be paid either by affixing adhesive stamps or by using non-judicial papers or otherwise as may be prescribed by the States concerned. Unless it is provided otherwise; adhesive stamps are generally used.

Execution of Memorandum of Association

• One copy of the Memorandum of Association is to be executed by the subscribers.
• The minimum number of subscribers who can execute the memorandum is two in the case of a private company. Each one of the subscribers must take atleast one share.
• While executing the Memorandum of Association the subscribers are required to write the following particulars in their own handwriting.
1. Name
2. Father’s /Husband’s name
3. Address
4. Description indication the occupation of the subscribers
5. Number of shares subscribed by them in words as well as in figures
6. Signatures
7. Date
• Generally speaking the memorandum should be signed by the subscribers. However, in certain cases it becomes difficult for the subscribers to sign the memorandum or any amendments thereto. This may happen where the subscribers to the memorandum are foreign parties who may be collaborating with Indian promoters.
• The Department of company Affairs has clarified that in such cases the memorandum be signed by an agent if authorized by a power of attorney to do so. When an executant is an illiterate person, he should annexe his thump impression or mark, which should be described as such by the person writing for him.

Witnesses

The execution of the Memorandum of Association is required to be witnessed. One person can witness the signatures of all the subscribers. None of the subscriber can be a witness. The witness ( es ) is/are required to give the following particulars in his/their own hand:

1. Signature
2. Name
3. Father’s /Husband Name
4. Descriptions indicating occupation
5. Address
6. Date

The date of signing should be the date on which themmemorandum is stamped or any date after that. It should not be any date prior to stamping.

For specimen Memorandum of Association please refer to Chapter 4