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Who will authenticate the
Document ?
&
Which
Documents to be authenticated and procedure under Companies Act, 2013Introduction
Under the provisions of Companies Act, 2013
and The Companies (Registration Offices and Fees) Rules, 2014, document need to
be authenticated by some professional’s or Individual(s). This article is about
which document’s need to be authenticated and by whom. we will discuss about
the same keeping in mind the provision of Companies Act, 2013 and Rules
notified their under and other applicable provisions..
Provision under
Companies Act, 2013 with interpreatation
As per the interpretation Under Rule 8 of The
Companies (Registration Offices and Fees) Rules, 2014:
(1)
An
electronic form shall be authenticated by authorised signatories using digital
signature.
(Interpretation and Suggestion: - A person need to be authorised to
Digitally Sign the E-Forms, For that we can particularly authorised a single
person for the particular purpose, According to author:- we may authorise any of the Director for the time
being in force through resolution for filling that particular e-form.
We can also do for ease:- Authorise any of the director for the time being in
force in 1st Board meeting to file all the e-form(s) for
the Financial Year, as we have to mention the Authority number and the date of passing
of such resolution in the particular e-form, so it is better to pass one
resolution in the 1st Board meeting of the particular Financial Year.)
(2)
Where there
is any change in directors or secretaries, the form relating to appointment of
such directors or secretaries has to be filed by an continuing director or the
secretary of the company.
(Interpretation
and Suggestions :- When there is new appointment or change in Director or
re-appointment than the e-form for that appointment/Re-appointment/change
should be signed/ filed by continuing Director/ Secretary and that Director/Secretary
should be other than, whose appointment is going to be filed in the particular form.
The purpose for the same is that same individual can’t file/authenticate its
own Appointment/Re-appointment/Change.)
(3)
The
authorised signatory and the professional, if any, who certify e-form shall be
responsible for the correctness of the contents of e-form and correctness of
the enclosures attached with the electronic form.
(Interpretation
and Suggestions :- It is the responsibility of the authorised signatory and
the professional who certify the e-Form, So that the professional and the Authorised
Signatory need to be careful while certifying/authenticate the e-form, a single
mistake can lead to Huge penalty/prosecution or even cancellation of membership {if any}.)
(4)
Every person
authorised for authentication of e-forms, documents or applications etc., which
are required to be filed or delivered under the Act or rules made there under,
shall obtain a digital signature certificate from the Certifying Authority for
the purpose of such authentication and such certificate shall not be valid
unless it is of class II or Class III specification under the Information
Technology Act, 2000 (21 of 2000).
(Interpretation
and Suggestions:- The person who Certifying/authenticate the e-form Should
obtain a Valid digital signature certificate(DSC) of class II or Class III from
the Certifying Authority.)
(5)
The
electronic forms required to be filed under the Act or the rules thereunder
shall be authenticated on behalf of the company by the Managing Director or
Director or Secretary of the Company or other key managerial personnel.
(Interpretation and Suggestion :- Such E-form Should be authenticate
on behalf of the company by Any of the following
(i)
Managing
Director or
(ii)
Director or
(iii)
Secretary of
the Company or
(iv) Other key
managerial personnel (KMP as defined in Section 2 (51) of the Act)
(6)
Scanned
image of documents shall be of original signed documents relevant to the
e-forms or forms and the scanned document image shall not be left blank without
bearing the actual signature of authorised person.
(Interpretation
and Suggestions:- The Scanned documents / attachment of particular e-form
Should be originally signed and No scanned sign should be used and should not
use sd/- in respect of signature. Also in the attachment no page should be left
blank. Such documents/ attachment should be clear and visible.)
(7)
It shall be
the sole responsibility of the person who is signing the form and professional
who is certifying the form to ensure that all the required attachments relevant
to the form have been attached completely and legibly as per provisions of the
Act, and rules made thereunder to the forms or application or returns filed.
(Interpretation
and Suggestions:- It is the responsibility of person who certifying
/authenticate the E-form to ensure the attachment should be complete and as per provisions of the Act, and rules
made thereunder and should be keep in mind that no Omission of Facts.)
(8)
The
documents or form or application filed may contain a power of attorney issued
to an Advocate or Chartered Accountant or Cost Accountant or Company Secretary
who is in whole time practice and to any others person supported by Board
resolution to make representation to the registering or approving authority
failing which a Director or key managerial personnel can make representation
before such authority .
(Interpretation
and Suggestions:- If the authority is given to Professionals or any other
person to represent on behalf of the Company than Such Document
/form/application should be supported by POA/Board Resolution.)
(9)
Where any
instance of filing document, application or return etc, containing a false or
misleading information or omission of material fact, requiring action
under section 448 or section 449 is observed, the person shall be liable
under section 448 and 449 of the Act.
(Interpretation
and Suggestions:- As discussed earlier that the professionals or the person
authenticating the Document should be keep in mind that no Omission of Facts or
misleading information should not be provided intentionally or unintentionally.
Provision of Sec 448 and 449 of the Act should be keep in mind.)
(10)
Without
prejudice to any other liability, in case of certification of any form,
document, application or return under the Act containing wrong or false or misleading
information or omission of material fact or attachments by the person, the
Digital Signature Certificate shall be de-activated by the Central Government
till a final decision is taken in this regard.
(Interpretation
and Suggestions:- Apart from other Liabilities for wrong/ false/ misleading information/ omission of material
fact, the Digital Signature Certificate shall be de-activated by the Central
Government till a final decision of particular matter.)
(11) The Central Government shall set up and
maintain for filing of electronic forms, documents and applications, and for
viewing and inspection of documents in the electronic registry or for obtaining
certified copies thereof-
(a) a website or portal to provide access to
the electronic registry; and
(b) as many Registrar’s Facilitation Offices
as may be necessary and at such places and for such time as the Central
Government may determine.
(12)(a)
The following e-forms filed by companies, other than one person companies and
small companies, under sub-rule (1) of rule 9, shall be pre-certified by the Chartered Accountant or
the Company Secretary or as the case may be the Cost Accountant, in whole-time
practice, namely:-
INC-21, INC-22, INC-28, PAS-3, SH-7, CHG-1,
CHG-4, CHG-9, MGT- 14,DIR-6, DIR-12, MR-1, MR-2, MSC-1, MSC-3, MSC-4, GNL-3,
ADT-1, NDH-1, NDH-2, NDH-3;
(Interpretation
and Suggestions:- The Above said E-forms shall be pre-certified by the
Chartered Accountant(CA) or the Company Secretary(CS) or as the case may be the
Cost Accountant(CMA) , in whole-time practice.
However the
relaxation has been given to one person companies(OPC) and small companies.
(b) The following e-forms filed by companies,
other than one person companies and small companies, under sub-rule (1)
of rule 9, shall be pre-certified in the following manner,
namely:—
(i) GNL-1 - optional pre-certification by the
Chartered Accountant or the Company Secretary or as the case may be the Cost
Accountant,in whole-time practice;
(ii) DPT-3 – certification by Auditors of the
company;
(iii) MGT-10-certification by a Company
Secretary in whole-time practice
(iv) AOC-4 certification by the
Chartered Accountant or the Company Secretary or asthe case may be by the Cost
Accountant, in whole-time practise."]
(Interpretation
and Suggestions:-
1. GNL-1shall be pre-certified by the CA /CS
/CMA, in whole-time practice.
However the
relaxation has been given to one person companies(OPC) and small companies.
2. DPT-3 :-
Certify Only be the Auditor of the
Company.
3. MGT-10-
Certify only by the PCS.
4. This
point is substituted by the Notification Dated 7th November, 2016. Previously
Only Charted Account( CA) in whole time Practice has the authority to sign the
AOC-4. But after the notification CA/CS/CMA in whole time Practice can certify
the form AOC-4.)
(c) E-form
DIR-3 shall be filed along with attestation of photograph, identity proof and
proof of residence of the applicant by the Chartered Accountant or the Company
Secretary or as the case may be the Cost Accountant, in whole-time
practice.]
(Note:- Sub rule 12 has been inserted by Notification-G.S.R. 297(E)
Dated 28th April,2014. Click here for Notification-G.S.R. 297(E) Dated 28th April,2014.
Author
Qualified
Company Secretary
Vikram
Grover
Vgrover44@gmail.com
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