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Compliance certificate under sec 383a

This query is : Resolved 

Querist : Anonymous

Querist : Anonymous (Querist)
Who appoints the Company secretary in Practice for issue of Compliance Certificate under Sec 383A?

Is it necessary for the CSP to inform the previous CSP if there is a change?

As per Proviso to Section 383A

"Provided that every company not required to employ a whole-time secretary under sub-section (1) and having a paid-up share capital of ten lakh rupees or more shall file with the Registrar a certificate from a secretary in whole-time practice in such form and within such time and subject to such conditions as may be prescribed14, as to whether the company has complied with all the provisions of this Act and a copy of such certificate shall be attached with Board’s report referred to in section 217.]"

So Company appoints PCS.

Querist : Anonymous

Querist : Anonymous (Querist)
Thanks for your reply Mr Ankit Jain.

According to your reply, the PCS should be appointed by the shareholders in a general meeting. Am I right?

What about the information to the previous PCS who has issued the Compliance Certificate in the previous year? Is there any mention any where in the Act, Rules for the Code of Conduct for the CS practising members, that information should be given?

Yes in AGM,Company having paid up capital more than 5 Crore is required to appoint Whole time company secretary.
For information resolution of the Board is enough that he will not be appointed for the current financial year.

Querist : Anonymous

Querist : Anonymous (Querist)
I think the CS Act 1980 contains a provision regarding professional conduct of members in practice wherein there is a provision that the PCS who issues a compliance certificate under Sec.383A should communicate in writing to the previous PCS in regard thereto. But it is not clear whether his consent should be obtained or no objection from the previous PCS should be received.

Regarding appointment of a PCS for the purpose of issue of CC, as CA Ankit Jain has replied that the Company i.e., the shareholders in the AGM appoint the PCS like the way the Stautory auditors are appointed.

Can any of the pratising CS members clarify the position as to what is happening in the actual practice?

Though the law is very much clear on the point as to type of companies who are required to appoint a whole time company secretary mandatorily and the type of companies who have to obtain a compliance certificate, there is no provision in law which requires a PCS appointed for issuance of compliance certificate to inform his immediate predecessor but it is required as per code of conduct so that there is no under cutting of fees and healthy competition among professionals.

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