Introduction
In India, concept of one person company (OPC) is newly introduced by the Companies Act, 2013, and the rules made thereunder from time to time, through which even a single person can also form a company for any lawful purpose by subscribing his/ her name into the memorandum of association means by becoming shareholder of the one person company.
The law maker for the purpose of making it sure that the company must be survive even after the death or permanent mentally, physically or legally disability of its sole owner has made it mandatory for registration and incorporation of one person company that sole owner has to specify name of another person viz. nominee of shareholder in MOA.
But here the prima facie question which arise is that whether it is mandatory or can we change the nominee appointed at the time of incorporation of Company or not.
The answer is yes, the nominee appointed can be changed from time to time even there are certain circumstances when the name of the nominee is required to be changed and the same is required to be intimated to the concerned authority i.e. ROC within the stipulated time period.
Situations when changes of nominee can occur
- Nominee can himself/ herself withdraw his/ her consent;
- Change of Nominee by Sole Owner/Member of One person company;
- Death or permanent disability of sole owner/member;
- Death or permanent disability of the Nominee;
- Nominee become insolvent
Few of above circumstance’s are elaborated below:
- Procedure to be followed in case nominee himself/ herself withdraw his/ her consent
As per the Company Act, 2013 and the rules 4(3) and (4) of the Companies Incorporation rules, 2014, a nominee may withdraw his/ her consent to act as nominee of one person company any time by giving written notice to the subscriber/ Member at their address, and to the concerned OPC at its registered office address.
Then in such a situation Member of the OPC shall be under an obligation to appoint or consider new nominee for one person company within 15 days of notice of withdrawal intimate the same to the One Person Company and take consent of new nominee in form INC-3.
Thereafter the OPC shall within 30 days from the date of receipt of notice of withdrawal, file Form INC-4 (intimation of such withdrawal and new nomination) along with form INC-3 (the consent of new nominee).
- Procedure to be followed in case of change of Nominee by Sole Owner/Member of One person company
There are numerous of time when the subscriber to the OPC intends to change the nominee, then in that situation the subscriber is needs to follow the rules as laid down in the Companies Act, 2013 and the rules made thereunder from time to time, which says sole owner/ subscriber of the OPC can change the nominee any time for any reason whatsoever by giving in writing a notice to OPC.
- ~ The subscriber thereafter would be required to appoint new nominee by taking his/ her prior consent to act as nominee in Form INC-3.
- ~ Thereafter the OPC shall within 30 days from the date of receipt of notice of withdrawal, file Form INC-4 (intimation of such withdrawal and new nomination) along with form INC-3 (the consent of new nominee).
- Procedure to be followed in case of death or permanent disability of Sole Member
In case of the sole owner/ subscriber to the OPC cease to become the member in the concerned OPC due to any permanent disability or death then in that situation his/ her nominee shall become the new member of the OPC, and such new member shall nominate within 15 days of becoming the member a person who shall in the event of death or permanent disability become the member of such OPC.
At the time of occurring of this situation, the OPC shall within 30 days from the date of change of membership, file Form INC-4 (intimation of such withdrawal and new nomination) along with form INC-3 (the consent of new nominee).
It is important to note down here that such changes in the name of the nominated person shall not be deemed to be an alternation in memorandum of association.
Conclusion:Hope we have helped the reader to understand the concept of change on nominee in case of One Person Company, in case you have any kind of doubt, please feel free to contact us at complianceship@gmail.com and/ or +91-8010233173.
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