2012 (6) TMI 430 - HC - Companies Law

Writ petition - praying for direction to respondent to include the advocates/corporate advocates in the list of practicing professionals and enable them to issue various certificates integrated into various e-forms notified under the Companies Act, 1956 and the Limited Liability Partnership Act, 2008 Held that - authentication or certification is required to be made by company secretaries, chartered accountants and costs accountants. prayer made by the petitioner could not be accepted.

Summary

Issues:
Prayer for including advocates in the list of practicing professionals for issuing certificates in e-Forms under Companies Act, 1956 and Limited Liability Partnership Act, 2008.

Analysis:
The petitioner sought relief through a writ petition under Article 226 of the Constitution of India to direct the respondent to include advocates in the list of practicing professionals for issuing certificates in e-Forms under the Companies Act, 1956 and the Limited Liability Partnership Act, 2008. The petitioner also requested to eliminate the obligatory certification of e-Forms and convert them into physical format or amend the e-Forms. The petitioner relied on sections 33 and 459 of the Companies Act, emphasizing the role of advocates in the registration process. However, the court noted that no direction can be issued to the Legislature for such changes. Section 33 of the Companies Act requires a declaration by advocates, among others, for compliance with registration requirements. The court also referenced section 11(1) of the Limited Liability Partnership Act, which mandates a statement by advocates, company secretaries, chartered accountants, or cost accountants for incorporation compliance.

The respondent clarified in a counter affidavit that sections 33 of the Companies Act and 11 of the Limited Liability Partnership Act are being fully complied with. The respondent highlighted that certain forms under the Companies Act, now required to be filed electronically, were previously not filed by advocates. With the transition to e-filing, these forms necessitate declarations and verifications in prescribed formats by relevant parties. Similarly, for limited liability partnerships, electronic filing requires authentication or certification by company secretaries, chartered accountants, and cost accountants. The court considered the respondent's explanation and declined to grant the relief sought by the petitioner. Consequently, the writ petition was dismissed without costs.

In conclusion, the judgment emphasizes the compliance with existing provisions of the Companies Act and the Limited Liability Partnership Act regarding the role of advocates and other professionals in certification and authentication processes for e-Forms. The court's decision reflects the importance of adhering to statutory requirements and procedures while utilizing electronic filing mechanisms, ultimately leading to the dismissal of the petitioner's prayer for relief.