Overview of the Companies (Incorporation) Third Amendment Rules, 2023

INTRODUCTION

The Ministry of Corporate Affairs, Government of India (“MCA”), has issued the Companies (Incorporation) Third Amendment Rules, 2023 vide Notification No. G.S.R. 790(E) dated October 20, 2023 (“Amended Rules”)ⁱ . The Amended Rules introduces significant changes to the Companies (Incorporation) Rules, 2014 (“Incorporation Rules”). The central focus of the Amended Rulesis around Rule 30 of the Incorporation Rules, specifically targeting on sub-rule (9). The noteworthy change introduced through this amendment aims to simplify the process of relocating a company's registered office, with a particular emphasis on scenarios where the management undergoes a change through a resolution plan approved under section 31 of the Insolvency and Bankruptcy Code, 2016 (“IBC”).

The following are the key highlights of the Amended Rules:

1. Simplification of Rule
   
   The first significant amendment to sub-rule (9) of Rule 30 involves omitting the words, "and may include such order as to costs as it thinks proper." This omission suggests a simplification of the rule, potentially reducing bureaucratic hurdles and expediting the process of shifting the registered office.


2. Provision for Shifting Registered Office
   
   Furthermore, the Amended Rules introduces a new proviso to sub-rule (9), providing a crucial exception to the rule. According to the newly added proviso, in cases where the management of a company has been taken over by new management through a resolution plan approved under section 31 of the IBC, and there is no pending appeal against the resolution plan in any Court or Tribunal, along with no ongoing or initiated inquiry, inspection, or investigation post the resolution plan's approval, the shifting of the registered office may be permitted.
   

The Amended Rules reflect a pragmatic approach of the MCA, acknowledging the unique circumstances arising from management changes under the insolvency and bankruptcy framework. The exception aligns with the government's broader objectives of facilitating ease of doing business, providing flexibility to companies in distress, and fostering a conducive business environment. The amendment ensures that companies undergoing resolution and revival processes, as envisaged under the IBC, can relocate their registered offices without unnecessary impediments, provided certain conditions are met. This move is expected to contribute to the efficiency of corporate governance and overall business resilience. Therefore, the Amended Rules, signify a step towards adapting regulatory frameworks to the dynamic needs of the corporate landscape. By addressing specific scenarios arising from insolvency proceedings, the MCA aims to strike a balance between facilitating business recovery and maintaining regulatory oversight. These Amended Rules underscore the government's commitment to fostering a business-friendly environment while upholding the integrity of corporate governance.