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Companies act 2013 - The murkier picture for a company secretary

Rohit Jain  
on 24 September 2013

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After independence the government of India created three professional institutes with the passage of time to regularize and standardize the corporate scenario in India. The powers, roles, functions, responsibilities and fields for three of them were clearly demarcated and hardly did overlap each other.

I.C.A.I -- Finance, Audit and Taxation

I.C.W.A.I - Cost audit and allied matters 

I..C.S.I - Secretarial duties, Compliance management and Adherence to companies act 

Since there was a clear delineation of functions, each of these institutes had their 'core' functions which could not be performed by the others.

Therefore it was not that a C.s will do a financial audit or a Chartered accountant sign compliance certificates of companies . When it comes to the compliance certificates to be issued to companies with respect to the rules of companies act , as per the The Companies (Compliance Certificate) Rules, 2001 issued by m.c.a , it was the company secretary alone who was empowered to sign a compliance certificate .

However the new companies act and the recently released company draft rules paint a murkier picture for company secretaries instead of being rosy as being portrayed .

The recently released drafts have not left a single compliance function to be an exclusive affair of a company secretary , right upto the issuance of  compliance certificate which is bread and butter of a company secretary.

Here are some excerpts from the draft rules enlisting the various procedures and all those functions which were specific domains of a company secretary have now been extended to cost accountants and chartered accountants.

Rule 2.7.b

a declaration in the prescribed form by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, who is engaged in the formation of the company,  and by a person named in the articles as a director, manager or secretary of the company, that all the requirements of this Act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with

Rule 2.16 4b 

 a declaration in Form No. 2.15 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that the draft memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with;

Even drafts and memorandums are not spared.

2.16 5.b

Declaration as given in Form No. 2.15 by an Advocate, a Chartered accountant, Cost Accountant or Company Secretary in Practice, that the memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with;

(c) the following documents submitted by the company in general meeting for each of the two financial years immediately preceding the date of the application, or when the company has functioned only for one financial year, for such year?

(i) the financial statements,

(ii) the Board’s reports, and

(iii) the audit reports;

2.19.6

The company shall attach with the application a certificate from practicing Chartered Accountant/ Company Secretary in practice/ Cost Accountant certifying that the conditions laid down in the Act and these rules relating to conversion of a company registered under section 8 into any other kind of company, have been complied with.

2.21

2.21. For the purposes of clause (a) of sub-section (1) of section 11, the declaration filed by a director shall be in Form No. 2.24 along with the fee as provided in Annexure ‘B’ and the contents of the form shall be verified by a Company Secretary in practice or a Chartered Accountant or a Cost Accountant

3.11.3

The company shall appoint a merchant banker or a practicing chartered accountant or a practicing cost accountant or a practicing company secretary to oversee all the compliances relating to issue of depository receipts and the compliance report taken from such merchant banker or practicing chartered accountant or practicing cost accountant or practicing company secretary, as the case may be, shall be placed at the meeting of the Board of Directors of the company to be held immediately after closure of all formalities of the issue of depository receipts

Rule of 8.3.3 ---- > Statement of persons whose pidend is unpaid or unclaimed.

The company shall, along with the copy of the Challan as required in second proviso to sub-rule (2), furnish a statement in Form No. 8.2 containing details of such transfer to the Authority duly certified by a company secretary in practice or a chartered accountant or cost accountant 

Rule 8.5: Manner of transfer of shares in respect of which unpaid or unclaimed pidend has been transferred under sub-section (6) of section 124

While effecting such transfer, the company shall send a statement to the Fund in form 8.3 containing details of such transfer duly certified by a company secretary in practice or a chartered accountant or a cost accountant.

11.7 allotment of Din number 

The form to be filed electronically shall be countersigned digitally by either of the following:

(i) a chartered accountant or a company secretary in practice or a cost  accountant; or

(ii) a company secretary in full time employment of the company or by the managing director or director of the company in which the applicant is to be appointed a director;

Since directors , management and Din fall into territory of compliance and governance which has been a field of a company secretary , this power also has been substituted substantially 

Rule 21.1 

A certificate from a Company Secretary in Practice or Chartered Accountant or Cost Accountant certifying that the entity applying for registration under this Part has complied with all the provisions of the Stamp Act, to the extent applicable including in vesting of immovable properties.

Anything specifically mentioned in the name of a c.s. is the safe keeping of share registers and company seal which also has an addendum 'or any other person authorised by the directors'

Now the question is that what's so empowering in this act for Company secretaries ? From an administrative or from public utility , this is surely welcome, but from the domain of Company secretaries , this is surely a curtailment of their rights.

It'll be childish to debate that if chartered accountants or cost accountants are allowed to issue compliance certificates , then why aren't company secretaries allowed financial or cost audits .Since a company secretary learns the intricacies of companies act and all related matters , why is it not that its only his domain? 


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