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Post-incorporation, a business entity is legally and terminologically a company from the date of incorporation (e.g., via SPICE+ process ["Gireesh Gangadharan, S/o. M. P. Gangadharan Nair VS Union Of India - Kerala"]), as evidenced by consistent judicial references and Certificate of Incorporation usage across cases ["Ram Shiromani Pal VS Registrar of Companies Kanpur - National Company Law Tribunal"] ["KIRANDEEP SINGH & SONS PRIVATE LIMITED VS Registrar of companies Punajb & chandigarh - National Company Law Tribunal"] ["Sandeep Mehra VS Registrar of Companies Punjab and Chandigarh - National Company Law Tribunal"]. Section 10A mandates declaration for operations but does not condition company status; non-commencement risks strike-off/restoration, not reclassification ["Murgesan Arun VS The registrar of companies chennai - National Company Law Tribunal"] ["DEEPAK ASHUTOSH BHARADWAJ VS REGISTRAR OF COMPANIES MUMBAI - National Company Law Tribunal"]. Yes, it can and is called a company after incorporation ["VSKRISHNA INFO PRIVATE LIMITED VS Registrar of Companies Uttar Pradesh - National Company Law Tribunal"] ["Mr. Atul Chandrakant Jagdale VS Registrar of Companies Mumbai - National Company Law Tribunal"].
In the world of business, choosing the right name and legal structure is crucial. Many entrepreneurs wonder: can a business be called a company after incorporation? This question touches on fundamental aspects of corporate law, particularly under Indian statutes like the Companies Act. While incorporation typically transforms a business into a distinct legal entity, the use of terms like company comes with specific statutory definitions, historical nuances, and regulatory restrictions.
This article explores the legal framework, drawing from key statutes, court decisions, and practical requirements. Note: This is general information and not specific legal advice. Consult a qualified lawyer for your situation.
Incorporation has evolved significantly. In the early 19th century, statutes allowed partial corporate privileges without full incorporation. For instance, the Crown could grant limited liability or perpetual succession via letters patent, creating hybrids between unincorporated entities (like clubs or societies) and full corporations. Additional Commissioner of Income Tax, (A. P. ) VS Vinayaka Cinema, Nellore - 1977 0 Supreme(AP) 245
Early 19th-century statutes allowed the Crown, via letters patent, to grant advantages of incorporation—such as limited liability or perpetual succession—without conferring full corporate personality. Additional Commissioner of Income Tax, (A. P. ) VS Vinayaka Cinema, Nellore - 1977 0 Supreme(AP) 245
Partnerships exemplify this hybrid model today, where partners can sue or be sued in the firm's name. This shows that terms like company or firm may imply partial corporate traits without full legal personality. However, true incorporation under modern laws confers complete corporate status, allowing the entity to be designated as a company.
In India, the Companies Act provides clear definitions. Under the Companies Act, 1956 (preceding the 2013 Act), Section 2(10) defined company as: (10) company means a company as defined in section 3. Section 3 covered entities formed by shares or guarantee, registered under the Act. Jai Shankar Agrahari VS Union Of India - 2020 0 Supreme(All) 677Jai Shankar Agrahari VS Union of India - 2020 0 Supreme(All) 59
Under the Companies Act, 1956... company was defined in Section 2(10) as: ‘(10) company means a company as defined in section 3’. Jai Shankar Agrahari VS Union Of India - 2020 0 Supreme(All) 677
Registration under these provisions grants corporate personality, enabling the business to legally use company in its name. Post-incorporation, entities receive an incorporation certificate, distinguishing them from partnerships or individuals. For example, in tender qualifications:
In the case of Company, incorporation certificate of the company/certificate of commencement of business of the company are required. Asraya Caterers VS State of Andhra Pradesh - 2022 Supreme(AP) 102Asraya Caterers VS State of Andhra Pradesh - 2022 Supreme(AP) 114
This certificate is mandatory for companies, unlike partnership registration under the Indian Partnership Act or individual sales tax certificates. Thus, after incorporation, referring to the business as a company aligns with statutory recognition.
Courts reinforce this. In consumer disputes, complaints naming officials with the company's designation (e.g., insurance company) are maintainable against the company itself, not individuals personally. ABHIJIT NANDY VS NEW INDIA ASSURANCE CO. LTD. - Consumer (1996)
In consumer disputes, complaints naming officials in designation with incorporation of the name of the company... are maintainable against the company itself. ABHIJIT NANDY VS NEW INDIA ASSURANCE CO. LTD. - Consumer (1996)
This binds the corporate entity, highlighting how incorporation enables company terminology for liability and standing.
While general incorporation allows company, specialized terms are restricted. The University Grants Commission (UGC) Act, 1956, defines a university under Section 2(f) as one established by a specific Central, Provincial, or State Act—not general Companies Act incorporation. Section 23 prohibits unauthorized use of University.
In Prem Chand Jain & Anr. Vs. R.K. Chhabra (AIR 1984 SC 981), the Supreme Court ruled that a Commercial University Limited (Companies Act-incorporated) does not qualify as a university. J.K. Soni vs State Govt. of NCT of Delhi - Delhi (2012)
Established or incorporated refers to special statutes... not general incorporation laws. J.K. Soni vs State Govt. of NCT of Delhi - Delhi (2012)
Failure to rename post-incorporation invites penalties, showing that while company is standard, conflating it with regulated terms like university is impermissible.
After incorporation, companies face ongoing obligations that affirm their status:
Company is not carrying on any business or operation for a period of two immediately preceding financial years... he shall send a notice to the Company... CHITRA DESAI VS S. ARJUNLAL SUNDERDAS - 2018 Supreme(Mad) 4222
Tender and Contract Compliance: Companies must submit incorporation certificates, unlike firms or individuals. Violations of tender conditions based on such distinctions can lead to contract awards being set aside. Asraya Caterers VS State of Andhra Pradesh - 2022 Supreme(AP) 102Asraya Caterers VS State of Andhra Pradesh - 2022 Supreme(AP) 114
Business Commencement: Shortly after incorporation, companies commence business, as noted in cases involving share capital reduction or restructuring. ESSAR STEEL LTD VS STATE - 2005 Supreme(Guj) 128
These underscore that incorporated businesses are distinctly companies, with unique documentation and compliance.
Upon formation, a company's right under Article 19(1)(c) of the Constitution is exercised, creating a separate juristic entity. However, the corporate veil may be lifted in certain cases. BOARD OF CONTROL FOR CRICKET VS CRICKET ASSOCIATION OF BIHAR - 2016 5 Supreme 612
As soon as citizens formed a company, the right guaranteed to them by Article 19(1)(c) stood exercised. BOARD OF CONTROL FOR CRICKET VS CRICKET ASSOCIATION OF BIHAR - 2016 5 Supreme 612
This separation allows the entity to operate and be called a company independently.
In summary, incorporation statutes confer the right to use company, subject to contextual rules preventing misuse. Legislative intent prioritizes clarity and prevents misleading practices. For tailored guidance, especially on naming or compliance, seek professional legal counsel.
Word count approximation: 950
#CompanyLaw #BusinessIncorporation #IndianCorporateLaw
M/s MindPec Solutions Private Limited (hereinafter called as the ‘Appellant Company’) is a company limited by shares was incorporated on 11.03.2021 under the Companies Act, 2013 bearing CIN: U72900UP2021PTC143270. ... It is stated that the Appellant Company has defaulted in filing FORM INC 20A, declaration pursuant to commencement of business operations within 180 days from the date of incorporation as per Section 10A(1)(a) of the Companies Act,2013 r/w Rule 23A of the Companies (#HL_S....
(iv) The Name of Company has been Struck Off on the ground that the company has failed to commence its business within one year of its incorporation and has not filed the Form INC-20A under Section 10A of the Companies Act, 2013. ... (xi) The Company has commenced its business since inception and was carrying on the business operations at the time when the name of the Company has been Struck Off by the Registrar of Companies, Gujarat. ... (iii) T....
It is stated that, the company is carrying its business, for which it was incorporated. In the initial days of Incorporation, the company was facing acute financial crunch and slow downturn in business. ... agreed, which they undertook to pay at the time of incorporation of the company and a declaration to that effect was not filed by the director within the period of 180 days from the date of incorporation of the company as require....
It is submitted, under Section 248(1) of the Companies Act, 2013 states that “a company has failed to commence its business within one year of its incorporation {or}(c)a company is not carrying on any business or operation for the period of two immediately preceding financial year and has not made any ... financial year following its incorporation. ... first financial year following its incorporation. ... The Company claimed to be in busine....
It is stated that the Company has defaulted in filing FORM INC 20A, declaration pursuant to commencement of business operations within 180 days from the date of incorporation as per Section 10A(1)(a) of the Companies Act, 2013 r/w Rule 23A of the Companies (Incorporation) Rules, 2014. ... Only default committed by the Appellant Company is not filing FORM INC-20A, declaration pursuant to commencement of business operations within 180 days from the date of incorporation....
9) The Company has prepared its accounts since its Incorporation which have been audited every year. ... The restoration of the name of the Company will enable the Company to continue its business operations in India and continuation of employment of the existing employees. ... 12)The Petitioner submits that the Company is in operation and is undertaking bona fide business activities. ... The aforesaid action was taken by Register of Companies, Mumbai as subscribers....
That it is to state that the company is carrying out its business activities and is running concern. The Company is a running concern and doing its business operations as per its objects and is maintaining its bank account with then ICICI Bank through which business transactions are made. ... The Company is a running concern and doing its business operations as per its objects and is maintaining its bank account with ICICI Bank through which business....
That it is to state that the company is carrying out its business activities and is running concern. The Company is a running concern and doing its business operations as per its objects and is maintaining its bank account with then ICICI Bank through which business transactions are made. ... The Company is a running concern and doing its business operations as per its objects and is maintaining its bank account with ICICI Bank through which business....
The aforesaid action was taken by Register of Companies, Mumbai as subscribers to the memorandum have not paid the subscription which they had undertaken to pay at the time of incorporation of a company and a declaration to this effect has not been filed within one hundred and eighty days of its incorporation ... INC 20A, and the declaration for commencement of business with the Registrar of Companies as required under Section 10A (1)(a) of the Companies Act, 2013 and Rule 23A of the Companies (Incorporation#H....
Section 248 (1) indicating that the company was not carrying on any business and therefore is liable to be struck off. ... company and a declaration to this effect has not been filed within 180 days of its incorporation under a href="./.. ... In the present case under appeal also, STK-1 dated 18.07.2022 was issued by the ROC after finding that the subscription which the company had undertaken to pay at the time of incorporation of the Company and a declaration to thi....
In the case of partnership firms and individuals, the latest income tax return filed is also required. In the case of a partnership firm registration certificate under the Indian Partnership Act is required. In the case of Company, incorporation certificate of the company/certificate of commencement of business of the company are required. In the case of an individual, registration certificate of local authority/sales tax authority is required.
In the case of a partnership firm registration certificate under the Indian Partnership Act is required. In the case of an individual, registration certificate of local authority/sales tax authority is required. In the case of partnership firms and individuals, the latest income tax return filed is also required. In the case of Company, incorporation certificate of the company/certificate of commencement of business of the company are required.
Company is not carrying on any business or operation for a period of two immediately preceding financial year sand ha snot made any application within such period for obtaining the status of a dormant Company under Section 455, he shall send a notice to the Company and all the directors of the Company of his intention to remove the name of the Company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice." Power of Registrar to remove name of Company from....
As soon as citizens formed a company, the right guaranteed to them by Article 19(1)(c) stood exercised. That being the position with regard to the doctrine of the veil of a corporation and the principle that the said veil can be lifted in some cases, the question which arises for our decision is; can we lift the veil of the petitioner and say that it is the shareholders who are really moving the Court under Article 32, and so, the existence of the legal and juristic separate entity of the petitioners as a corporation or as a company should not make the petitions filed by them under Article 3....
( 4 ) SHORTLY after its incorporation, the Company commenced its business and it is carrying it on since then.
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