One person can form a company for any lawful purpose by subscribing his or her name to the memorandum of association i.e. by becoming a shareholder. Such forms of company in India are called One Person Company.
To ensure that the One Person Company lives on even after the death or disability of the sole owner, Companies Act 2013, has made it mandatory that the sole owner has to indicate name of another person i.e. nominee shareholder in MOA.
Such nominee shareholder shall be taking over as a member of the company in the event of subscriber’s or owner’s death or incapacity to contract.
Nominee shareholder for registration of One Person Company
Written consent of the other person i.e. nominee shareholder along with Memorandum of association and Article of Association is required to be filed with the registrar of companies or ROC at the time of incorporation of One Person Company.
Such written consent should be taken in form INC3. Please remember that INC3 has to be filed up electronically by downloading it from MCA site. After selecting check form, if everything found to be ok then take a print out of INC3 form and sign it before attaching with forms INC2.
Along with form INC3, the nominee shareholder is also required to submit documentary proof of his or her PAN card, identity card and residential address. These documents are required to be attached to form INC2 as an attachment.
To become a nominee, the person has to be an Indian citizen and resident of India. Resident of India means the nominee shareholder should have stayed in India for a period of not less than 182 days during the immediately preceding one calendar year. Same thing is also applicable to be a member or shareholder of One Person Company.
What to do when nominee has withdrawn consent to act as nominee shareholder
If the nominee shareholder who has given his written consent at the time of incorporation wants to withdraw then he or she can do so by intimating it to the sole member and to the One Person Company in writing.
After receiving such consent for withdrawal, the sole member shall nominate another person as nominee shareholder within 15 days from the date of receipt of the notice of withdrawal.
At the same time the sole owner is required to intimate in writing to the company on this matter along with written consent of the new nominee in form INC3 and documentary proof of PAN card, identity card and residential address of the new nominee.
The One person Company shall within 30 days of receipt of the notice shall file the withdrawal of consent and the intimation of the name of another person nominated by the sole member in Form INC4 along with consent of new nominee in form INC3 and fees as provided in Companies (Registration offices and fees) Rules, 2014.
Nominee’s documentary proofs of PAN card, identity card and address as sent by sole owner are required to be attached with form INC4.
How to change nominee shareholder in case of One Person Company
If the sole owner or person who has created One Person Company or OPC wants to change the name of the person nominated by him or her i.e. nominee shareholder for any reason then he or she can do so by intimating it to the One Person Company along with written consent of new nominee member in Form INC3.
Documentary proof of PAN card, identity and residential address of the new nominee is also required to be submitted to the company.
The company is required to file e-form INC4 with written consent of new nominee shareholder in form INC3 along with attachments like proof of PAN card, identity card and residential address proof within 30 days of receipt of intimation of the change.
How nominee shareholder gets appointed in case of cessation or death
In case of cessation of sole member of One Person Company on account of death or incapacity to contract or change in ownership, the company has to file form INC4 with details of new member. Prior written consent in form INC3 along with documents for proof of PAN card, identity and residential address has to be intimated as an attachment to the same form.
When nominee becomes a member on account of death or incapacity to contract or change in ownership, such new member shall nominate another person being an Indian citizen and resident of India within 15 days of becoming a member.
Prior written consent of the new nominee shareholder has to be intimated to the company along with documents toward proof of PAN card, identity and residential address.
After receiving the intimation from new sole owner, the company shall file with the registrar of companies or ROC an intimation of such cessation and nomination in form INC4 along with prior written consent of the person so nominated in form INC3 and document proofs of PAN card, identity card and address within 30 days of the change in membership.
Changes to the nominee shareholder will not be considered as alternation to memorandum of association or MOA.
As per rule 3 of Companies (Incorporation) Rule, 2014, no person shall be eligible to incorporate more than a One Person Company or become nominee in more than one such company.
When a person being a member of one OPC becomes a member of another OPC by virtue of his being a nominee in that OPC then within 180 days such person is required to withdraw his or her membership either of the OPCs.
