Who will authenticate the Document and Which Documents to be authenticated and procedure under Companies Act, 2013
Introduction
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 interpretation
As per the interpretation Under Rule 8 of The Companies (Registration Offices and Fees) Rules, 2014:
(1) An electronic form shall be authenticated by authorized signatories using digital signature.
(Interpretation and Suggestion: – A person need to be authorized to Digitally Sign the E-Forms, For that we can particularly authorized a single person for the particular purpose, According to author:- we may authorize any of the Director for the time being in force through resolution for filling that particular e-form.
We can also do for ease:- Authorize 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 authorized 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 authorized signatory and the professional who certify the e-Form, So that the professional and the Authorized 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 authorized 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 there under 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 authorized 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 there under 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 there under 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 practice.”]
(Interpretation and Suggestions:-
1. GNL-1shall be per-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.
(Author can be reached at Vgrover44@gmail.com)
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