Sometimes before Postal Department has discontinued the UPC service namely the facility of Certificate of Posting.
Consequent upon which our Ministry of Corporate Affairs had permitted the service of documents upon the Shareholders through e-mail instead of physical mode. To that effect, MCA had come out with a Circular No.17/2011 dated 21.04.2011 informing that the documents which are required to be served to members can be done by way of email (u/s 53 of the Companies Act 1956).
However there was no clarity in the said circular as to sending of full set of annual report through e-mail will be in compliance with provisions of the Section 219 of the Companies Act 1956.
Since this issue was arised by various Industry bodies and Professionals, now the MCA came out with an another circular prescribing procedure to be followed in line with requirements to be complied with as per provisions of Section 53 and Section 219 of the Companies Act 1956, the text of that recent circular reproduced below for the benefit of the readers:
Clarification regarding sending copies of balance sheets and auditors report etc., to the members of the company as required under section 219 of the companies act, 1956 through electronic mode
Circular No. 18/2011, Dated: 29.4.2011
Subject : Green Initiative in the Corporate Governance- Clarification regarding sending copies of Balance Sheets and Auditors Report etc., to the members of the company as required under section 219 of the Companies Act, 1956 through electronic mode.
The Ministry of Corporate Affairs has taken a “Green Initiative in the Corporate Governance” by allowing paperless compliance by the Companies after considering sections 2, 4, 5, and 81 of the Information Technology Act, 2000 for legal validity of compliance under Companies Act, 1956 through electronic mode.
2. The Ministry has been receiving representations from various Industry bodies to dispense with sending physical Annual report of a Company comprising of Balance Sheet, Profit & Loss Account, Director’s Report, Auditor’s Report etc. to its Members as required under section 219 of the Companies Act, 1956 and in lieu of the same the companies may be permitted to send the aforesaid documents by E-Mail to it Members.
3. Section 4 of the Information Technology Act, 2000, provides as under:
“Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is- (a) rendered or made available in an electronic form and (b) accessible so as to be usable for a subsequent reference.”
4. In the light of the above provisions and circumstances it is hereby clarified that the company would be in compliance of sections 219(1) of Companies Act, 1956, in case, a copy of Balance Sheet etc., is sent by electronic mail to its member subject to the fact that company has obtained -
(a) e-mail address of its member for sending the Notice with Balance sheet, Profit & Loss Account, Auditor’s Report, Director’s Report, and Explanatory Statement etc through e-mail, after giving an advance opportunity to the member to register his e-mail address and changes therein from time to time with the company or with the concerned depository.
(b) Company’s website display full text of these documents well in advance prior to mandatory period and issue advertisement in prominent newspapers in both vernacular and English stating that the copies of aforesaid documents are available in the website and for inspection at the Registered Office of the company during office hours. Website must be designed in a way so that documents can be opened easily and quickly.
(c)In cases where any member(s) has not registered his e-mail address for receiving the Balance Sheet etc through e-mail, the Balance Sheet etc., will be sent by other modes of services as provided under section 53 of the Companies Act, 1956.
(d) In case any member(s) insist for physical copies of above documents, the same should be sent to him physically, by post free of cost.
Copy to: All concerned.
Thanks and Regards