Digital signature
Querist :
Anonymous
(Querist) 17 November 2011
This query is : Resolved
We were using his digital signature of MD who resigned few months back. But now we have obtained digital signature of second director. Can we use the same for filing Annual Returns and other statutory forms of forms relating to period of Earlier MD.
Sankaranarayanan
(Expert) 17 November 2011
no you should not use it, because even it is pertaining to the exit MD, the filling date is current date, so better to file a application and change the Digital signature of new MD and do it
prabhakar singh
(Expert) 17 November 2011
mR. sankar narayanan RIGHTLY opines that yo should not use the digital signatures of old MD.you should apply a fresh.
Querist :
Anonymous
(Querist) 17 November 2011
Dear Sirs,
We are not using Digital Signature of old MD. In fact we have obtained digital signature of existing second director and want to use the same.
Sankaranarayanan
(Expert) 17 November 2011
then why you put the query regarding it. you can use if the director is in the company. as managing director
Querist :
Anonymous
(Querist) 18 November 2011
Dear Sir
He is an ordinary director and not managing director
Sailesh Kumar Shah
(Expert) 18 November 2011
is new md appointed or any whole time director?
Sailesh Kumar Shah
(Expert) 18 November 2011
your company is statutory requirement to appoint MD?
Raj Kumar Makkad
(Expert) 18 November 2011
Shah! I think we are mis-driven.
Querist is asking simple question 'whether he can use digital signature of subsequent director for filing returns and other statutory documents for the period earlier (now resigned) director was working' and its simple answer is yes.
It is not relevant for which period, returns are being sent. Relevancy is only of the date when it/there are submitted before the concerned authority under signature of person holding office on that day.
I am really sorry on behalf of those experts who could not understand this simple query.
Raj Kumar Makkad
(Expert) 18 November 2011
Shah! We are not concerned whether MD is working in the company or not. It is better first to reply query properly and if any suggestion seems favoring querist then can be given.
Without replying query, it seems harsh suggesting innocent querist.
Sailesh Kumar Shah
(Expert) 19 November 2011
Shri Raj Kumar Makkad,
Respected Sir,
I feel very hurt, after reading your words.
I had asked right question.
please go to section 161.
Sailesh Kumar Shah
(Expert) 19 November 2011
Extract of Section 161
161. Further provisions regarding annual return and certificate to be annexed thereto.—
(1) The copy of the annual return filed with the Registrar under section 159 or 160, as the case may be, shall be signed both by a director and by the 1[***] manager or secretary of the company, or where there is no 1[***] manager or secretary, by two directors of the company, one of whom shall be the managing director where there is one:
2[Provided that where the annual return is filed by a company whose shares are listed on a recognised stock exchange, the copy of such annual return shall also be signed by a secretary in whole-time practice.]
(2) There shall also be filed with the Registrar along with the return a certificate signed by 3[the signatories] of the return, stating—
(a) that the return states the facts as they stood on the day of the annual general meeting aforesaid, correctly and completely; 4[***]
5[(aa) that since the date of the last annual return the transfer of all shares and debentures and the issue of all further certificates of shares and debentures have been appropriately recorded in the books maintained for the purpose; and]
(b) in the case of a private company also, (i) that the company has not, since the date of the annual general meeting with reference to which the last return was submitted, or in the case of a first return, since the date of the incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company, and (ii) that, where the annual return discloses the fact that the number of members of the company exceeds fifty, the excess consists wholly of persons who under sub-clause (b) of clause (iii) of sub-section (1) of section 3 are not to be included in reckoning the number of fifty.
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1. The words “managing agent, secretaries and treasurers,” omitted by Act 31 of 1988, sec. 23 (w.e.f. 15-6-1968).
2. Ins. by Act 31 of 1988, sec. 23 (w.e.f. 15-6-1988).
3. Subs. by Act 31 of 1988, sec. 23, for “both the signatories” (w.e.f. 15-6-1988).
4. The word “and” omitted by Act 65 of 1960, sec. 40 (w.e.f. 28-12-1960).
5. Ins. by Act 65 of 1960, sec. 40 (w.e.f. 28-12-1960).
Raj Kumar Makkad
(Expert) 20 November 2011
After again going through the query, replies received thereon and your subsequent comment, I find unable to understand what wrong has been committed by me which hurt you. I am sorry if any word of mine was thought/taken by you as a personal comment against you. A friendly or professional suggestion by a senior is if taken as otherwise, I shall stop it immediately. We experts have right to express divergent opinion on any issue as per our understanding but the same should not be treated as a personal comment. There is no intension of hurting you or any other expert.
Sailesh Kumar Shah
(Expert) 21 November 2011
Shri Raj kumar Makkad,
Respected Sir,
Thanks for reply.
Section 161(1) defines who shall sign:-
"The copy of the annual return filed with the Registrar under section 159 or 160, as the case may be, shall be signed both by a director and by the 1[***] manager or secretary of the company, or where there is no 1[***] manager or secretary, by two directors of the company, one of whom shall be the managing director where there is one"
Section 161(2) clearly states that "There shall also be filed with the Registrar along with the return a certificate signed by the 'signatories of the return', stating"
Sailesh Kumar Shah
(Expert) 21 November 2011
According to section 269, appointment of MD is mandatory, in case every public company, or a private company which is a subsidiary of a public company, having a paid up share capital of such sum as may be prescribed, shall have a managing or whole-time director or a manager
Extract of Section 269:-
269. Appointment of managing or whole-time director or manager to require Government approval only in certain cases.
1[269. Appointment of managing or whole-time director or manager to require Government approval only in certain cases.—(1) On and from the commencement of the Companies (Amendment) Act, 1988, every public company, or a private company which is a subsidiary of a public company, having a paid up share capital of such sum as may be prescribed, shall have a managing or whole-time director or a manager.
(2) On and from the commencement of the Companies (Amendment) Act, 1988, no appointment of a person as a managing or whole-time director or a manager in a public company or a private company which is a subsidiary of a public company shall be made except with the approval of the Central Government unless such appointment is made in accordance with the conditions specified in Parts I and II of Schedule XIII (the said Parts being subject to the provisions of Part III of that Schedule) and a return in the prescribed form is filed within ninety days from the date of such appointment.
(3) Every application seeking approval to the appointment of a managing or whole-time director or a manager shall be made to the Central Government within a period of ninety days from the date of such appointment.
(4) The Central Government shall not accord its approval to an application made under sub-section (3), if it is satisfied that—
(a) the managing or whole-time director or the manager appointed is, in its opinion, not a fit and proper person to be appointed as such or such appointment is not in the public interest; or
(b) the terms and conditions of the appointment of managing or whole-time director or the manager are not fair and reasonable.
(5) It shall be competent for the Central Government while according approval to an appointment under sub-section (3) to accord approval for a period lesser than the period for which the appointment is proposed to be made.
(6) If the appointment of a person as a managing or whole-time director or a manager is not approved by the Central Government under sub-section (4), the person as appointed shall vacate his office as such managing or whole-time director or manager on the date on which the decision of the Central Government is communicated to the company, and if he omits or fails to do so, he shall be punishable with fine which may extend to 2[five thousand rupees] for every day during which he omits or fails to vacate such office.
(7) Where the Central Government suo motu or on any information received by it is, prima facie, of the opinion that any appointment made under sub-section (2) without the approval of the Central Government has been made in contravention of the requirements of Schedule XIII, it shall be competent for the Central Government to refer the matter to the 3[Tribunal] for decision.
(8) The 3[Tribunal] shall, on receipt of a reference under sub-section (7), issue a notice to the company, the managing or whole-time director or the manager, as the case may be, and the director or other officer responsible for complying with the requirements of Schedule XIII, to show cause as to why such appointment shall not be terminated and the penalties provided under sub-section (10) shall not be imposed.
(9) The 4[Tribunal] shall, if, after giving a reasonable opportunity to the company, the managing or whole-time director or the manager, or the officer who is in default, as the case may be, comes to the conclusion that the appointment has been made in contravention of the requirements of Schedule XIII, made an order declaring that a contravention of the requirements of Schedule XIII has taken place.
(10) On the making of an order by the 4[Tribunal] under sub-section (9),—
(a) the company shall be liable to a fine which may extend to 5[fifty thousand rupees];
(b) every officer of the company who is in default shall be liable to a fine of 6[one lakh rupees]; and
(c) the appointment of the managing or whole-time director or manager, as the case may be, shall be deemed to have come to an end and the person so appointed shall, in addition to being liable to pay a fine of 6[one lakh rupees], refund to the company the entire amount of salaries, commissions and perquisites received or enjoyed by him between the date of his appointment and the passing of such order.
(11) If a company contravenes the provisions of sub-section (10) or any direction given by the 4[Tribunal] under that sub-section every officer of the company who is in default and the managing or whole-time director or the manager, as the case may be, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to a fine which may extend to 7[five hundred rupees] for every day of default.
(12) All acts done by a managing or whole-time director or a manager, as the case may be, purporting to act in such capacity and whose appointment has been found to be in contravention of Schedule XIII, shall, if the acts so done are valid otherwise, be valid notwithstanding any order made by the 4[Tribunal] under sub-section (9).
Explanation.—In this section “appointment” includes re-appointment and “whole-time director” includes a director in the ‘whole-time employment of the company’.]
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1. Subs. by Act 31 of 1988, sec. 46, for section 269 (w.e.f. 15-6-1988). Earlier section 269 was substituted by Act 65 of 1960, sec. 91 (w.e.f. 28-12-1960).
2. Subs. by Act 53 of 2000, sec. 130, for “five hundred rupees” (w.e.f. 13-12-2000). 3. Subs. by Act 11 of 2003, sec. 33, for “Company Law Board”.
4. Subs. by Act 11 of 2003, sec. 33, for “Company Law Board”.
5. Subs. by Act 53 of 2000, sec. 130, for “five thousand rupees” (w.e.f. 13-12-2000).
6. Subs. by Act 53 of 2000, sec. 130, for “ten thousand rupees” (w.e.f. 13-12-2000).
7. Subs. by Act 53 of 2000, sec. 130, for “fifty rupees” (w.e.f. 13-12-2000).
Sailesh Kumar Shah
(Expert) 21 November 2011
Respected Makkad Sir,
Now please go through Section 161(1),161(2) and Section 269.
you would find the reasons, for which i had rightly asked the questions.against which you earlier commented upon me that "Without replying query, it seems harsh suggesting innocent querist." After reading this, I feel very hurt.
Sir, you are being my senior, you have full right upon me to object, if i am misguiding anyone.
Please don't stop guidance to me. I always wish to learn from Seniors.
Thanks
with Regards,
