Section 398 of Companies Act, 2013 – Provisions relating to filing of applications, documents, inspection, etc., in electronic form

SECTION 398. PROVISIONS RELATING TO FILING OF APPLICATIONS, DOCUMENTS, INSPECTION, ETC., IN ELECTRONIC FORM

[Effective from 1st April, 2014]

(1) Notwithstanding anything to the contrary contained in this Act, and without prejudice to the provisions contained in section 6 of the *Information Technology Act, 2000 (21 of 2000), the Central Government may make rules[1] so as to require from such date as may be prescribed in the rules that—

(a)   such applications, balance sheet, prospectus, return, declaration, memorandum, articles, particulars of charges, or any other particulars or document as may be required to be filed or delivered under this Act or the rules made thereunder, shall be filed in the electronic form and authenticated in such manner as may be prescribed;

(b)   such document, notice, any communication or intimation, as may be required to be served or delivered under this Act, in the electronic form and authenticated in such manner as may be prescribed;

(c)   such applications, balance sheet, prospectus, return, register, memorandum, articles, particulars of charges, or any other particulars or document and return filed under this Act or rules made thereunder shall be maintained by the Registrar in the electronic form and registered or authenticated, as the case may be, in such manner as may be prescribed;

(d)   such inspection of the memorandum, articles, register, index, balance sheet, return or any other particulars or document maintained in the electronic form, as is otherwise available for inspection under this Act or the rules made thereunder, may be made by any person through the electronic form in such manner as may be prescribed;

(e)   such fees, charges or other sums payable under this Act or the rules made thereunder shall be paid through the electronic form and in such manner as may be prescribed; and

(f)   the Registrar shall register change of registered office, alteration of memorandum or articles, [7] [***], issue certificate of incorporation, register such document, issue such certificate, record the notice, receive such communication as may be required to be registered or issued or recorded or received, as the case may be, under this Act or the rules made thereunder or perform duties or discharge functions or exercise powers under this Act or the rules made thereunder or do any act which is by this Act directed to be performed or discharged or exercised or done by the Registrar in the electronic form in such manner as may be prescribed.

Explanation.—For the removal of doubts, it is hereby clarified that the rules made under this section shall not relate to imposition of fines or other pecuniary penalties or demand or payment of fees or contravention of any of the provisions of this Act or punishment therefore.

(2) The Central Government may, by notification, frame a scheme to carry out the provisions of sub-section (1) through the electronic form.

Applicable Rules

[Companies (Registration Offices and Fees) Rules, 2014]

[Effective from 1st April, 2014]

Rule 7. Manner and conditions of filing.—Every application, financial statement, prospectus, return, declaration, memorandum, articles, particulars of charges, or any other particulars or document or any notice, or any communication or intimation required to be filed or delivered or served under the Act and rules made there under, shall be filed or delivered or served in computer readable electronic form, in portable document format (pdf) or in such other format as has been specified in any rule or form in respect of such application or form or document or declaration to the Registrar through the portal maintained by the Central Government on its web-site or through any other website notified by the Central Government:

Provided that where the documents are required to be filed on Non-Judicial Stamp Paper, the company shall submit such documents in the physical form, in addition to their submission in electronic form, unless the Central Government, by an order, does not require submission in physical form and proof of delivery of documents submitted in physical form shall be scanned and form part of attachment to the e- form.

Provided further that if stamp duty on such documents is paid electronically through the portal maintained by the Central Government or through any other website notified by the Central Government, then, the company shall not be required to make physical submission of such documents, in addition to their submission in the electronic form:

Provided also that in respect of certain documents filed under the Act which are not covered for payment of stamp duty through the portal of the Central Government, and stamp duty payable on such documents in the respective State is equal to or less than one hundred rupees, the company shall scan such stamped documents complete in all respects and shall file electronically for evidencing by the Registrar and shall not be required to submit such documents, except those which are required to be filed for compounding of offences or adjudication of penalties or applications to Central Government or Regional Director in the physical form separately:

Provided also that unless otherwise stated in any law for the time being in force, the company shall retain such documents duly stamped in original permanently for the documents relating to incorporation and matters incidental thereto, changes in any of the clauses of the Memorandum and Articles of Association and in other cases for a minimum period of eight years from the date of filing of the documents and shall be required to produce the same as and when the same is required for inspection and verification by the competent authority under any law for the time being in force:

Provided also that any correspondences (physically or electronically) and documents to be filed by any person shall contain name, designation, address, membership number or Director Identification Number, as the case may be, of the person signing such document and make sure correctness thereof and in no case, correspondence, merely with signature and writing authorised signatory shall be acceptable.

Provided also that no request for recording any event based information or changes shall be accepted by the Registrar from such defaulting companies, unless they file their updated Balance Sheet and Profit and Loss Account and Annual Return with the Registrar of Companies except,—

(i)            filing of order of Court or other authorities,

(ii)           Balance Sheet and Profit and Loss Account,

(iii)         Compounding application,

(iv)          Form for transfer of money to Investor Education and Protection Fund,

(v)           Application for removal of the Auditor and

(vi)          GNL-1 for making company active.

 

Rule 8. Authentication of documents.—(1) An electronic form shall be authenticated by authorised signatories using digital signature.

(2)           Where there is any change in directors or secretaries, the form relating to appointment of such directors or secretaries has to be filed by an continuing director or the secretary of the company.

(3) The authorised signatory and the professional, if any, who certify e-form shall be responsible for the correctness of the contents of e-form and correctness of the enclosures attached with the electronic form.

(4) Every person authorised for authentication of e-forms, documents or applications etc., which are required to be filed or delivered under the Act or rules made there under, shall obtain a digital signature certificate from the Certifying Authority for the purpose of such authentication and such certificate shall not be valid unless it is of class II or Class III specification under the Information Technology Act, 2000 (21 of 2000).

(5) The electronic forms required to be filed under the Act or the rules thereunder shall be authenticated on behalf of the company by the Managing Director or Director or Secretary of the Company or other key managerial personnel.

(6) Scanned image of documents shall be of original signed documents relevant to the e-forms or forms and the scanned document image shall not be left blank without bearing the actual signature of authorised person.

(7) It shall be the sole responsibility of the person who is signing the form and professional who is certifying the form to ensure that all the required attachment relevant to the form have been attached completely and legibly as per provisions of the Act, and rules made thereunder to the forms or application or returns filed.

(8) The documents or form or application filed may contain a power of attorney issued to an Advocate or Chartered Accountant or Cost Accountant or Company Secretary who is in whole time practice and to any others person supported by Board resolution to make representation to the registering or approving authority failing which a Director or key managerial personnel can make representation before such authority .

(9) Where any instance of filing document, application or return etc, containing a false or misleading information or omission of material fact, requiring action under section 448 or section 449 is observed, the person shall be liable under section 448 and 449 of the Act.

(10) Without prejudice to any other liability, in case of certification of any form, document, application or return under the Act containing wrong or false or misleading information or omission of material fact or attachments by the person, the Digital Signature Certificate shall be de-activated by the Central Government till a final decision is taken in this regard.

(11) The Central Government shall set up and maintain for filing of electronic forms, documents and applications, and for viewing and inspection of documents in the electronic registry or for obtaining certified copies thereof—

(a)           a website or portal to provide access to the electronic registry; and

(b)           as many Registrar’s Facilitation Offices as may be necessary and at such places and for such time as the Central Government may determine.

[2][(12)(a) The following e-forms filed by companies, other than one person companies and small companies, under sub-rule (1) of rule 9, shall be pre-certified by the Chartered Accountant or the Company Secretary or as the case may be the Cost Accountant, in whole-time practice, namely:—

INC-21, INC-22, INC-28, PAS-3, SH-7, CHG-l, CHG-4, CHG-9, MGT-14, DIR-6, DIR-12, MR-l, MR-2, MSC-l, MSC-3, MSC-4, GNL-3, ADT-l, NDH-l, NDH-2, NDH-3;

(b) The following e-forms filed by companies, other than one person companies and small companies, under sub-rule (1) of rule 9, shall be pre­certified in the following manner, namely:—

(i)            GNL-l – optional pre-certification by the Chartered Accountant or the Company Secretary or as the case may be the Cost Accountant, in whole-time practice;

(ii)           DPT-3 – certification by Auditors of the company;

(iii)         MGT-10 – certification by a Company Secretary in whole-time practice;

[5] [(iv)          AOC-4 certification by a Chartered Accountant or the Company Secretary or as the case may be by  the Cost Accountant, in whole-time practice.]

(c) E-form DIR-3 shall be filed along with attestation of photograph, identity proof and proof of residence of the applicant by the Chartered Accountant or the Company Secretary or as the case may be the Cost Accountant, in whole-time practice.]

 

Rule 9. Maintaining documents electronically.—[3][(1) The Central Government shall set up and maintain a secure centralised electronic registry in which all the applications, financial statement, prospectus, return, register, memorandum, articles, particulars of charges, or any particulars or returns or any other documents under the Act shall be filed and stored electronically.]

(2) Every document or certificate or notice or other document required to be registered or authenticated by the Registrar or an officer of the Central Government under the Act or rules made there under, shall be registered or authenticated through a valid digital signature of such person or a system generated digital signature.

(3)           The Registrar shall issue document, certificate, notice, receipt, approval or communicate endorsement or acknowledgement in the electronic mode:

Provided that where the Registrar is not able to issue any certificate, receipt, endorsement, acknowledgement or approval in electronic mode for the reasons to be recorded in writing, he may issue such certificate or receipt or endorsement, acknowledgement or approval in the physical form under manual signature affixing seal of his office.

(4)           The Registrar may send any document, certificate, notice or any other communication to the company or its authorised representative or directors or both in the electronic manner for which the company shall create and maintain at all times a valid electronic addresses including e- mail, user identifications capable of receiving and acknowledging the receipt of the document, certificate, notice or other communication, automated or otherwise.

 

Rule 10. Procedure on receipt of any application or form or document electronically.—(1) The Registrar shall examine or cause to be examined every application or e-Form or document required or authorised to be filed or delivered under the Act and rules made thereunder for approval, registration, taking on record or rectification by the Registrar, as the case may be:

Provided that save as otherwise provided in the Act, the Registrar shall take a decision on the application, e-form or documents within thirty days from the date of its filing excluding the cases in which an approval of the Central Government or the Regional Director or any other competent authority is required:

Provided further that the e-Forms or documents identified as informative in nature and filed under Straight Through Process may be examined by the Registrar at any time on suo-motu or on receipt of any information or complaint from any source at any time after its filing:

Provided also that nothing contained in the first proviso shall affect the powers of the Registrar to call information or explanation in pursuance of section 206.

(2)           Where the Registrar, on examining any application or e-Form or document referred to in sub-rule (1), finds it necessary to call for further information or finds such application or e-form or document to be defective or incomplete in any respect, he shall give intimation of such information called for or defects or incompleteness, by e-mail on the last intimated e-mail address of the person or the company, which has filed such application or e-form or document, directing him or it to furnish such information or to rectify such defects or incompleteness or to re-submit such application or e-Form or document within the period allowed under sub-rule (3):

Provided that in case the e-mail address of the person or the company in question is not available, the intimation shall be given by the Registrar by post at the last intimated registered office address of the company or the last intimated address of the person, as the case may be and the Registrar shall preserve the facts of the intimation in the electronic record.

(3) Except as otherwise provided in the Act, the Registrar shall allow fifteen days’ time to the person or company which has filed the application or e-Form or document under sub-rule (1) for furnishing further information or for rectification of the defects or incompleteness or for re-submission of such application or e-form or document.

[6] [“Provided that Registrar shall allow fifteen days’ time for re-submission in case of reservation of a name through web service -“RUN for rectifications of defects if any]

(4) In case where such further information called for has not been provided or has been furnished partially or defects or incompleteness has not been rectified or has been rectified partially or has not been rectified as required within the period allowed under sub-rule (3), the Registrar shall either reject or treat the application or e-form or document, as the case may be, as invalid in the electronic record, and shall inform the person or company, as the case may be, in the manner as specified in sub-rule (2).

(5)           Where any document has been recorded as invalid by the Registrar, the document may be rectified by the person or company only by fresh filing along with payment of fee and additional fee, as applicable at the time of fresh filing, without prejudice to any other liability under the Act.

(6) In case the Registrar finds any e-form or document filed under Straight Through Process as defective or incomplete in any respect, at any time suo-motu or on receipt of information or compliant from any source at any time, he shall treat the e-form or document as defective in the electronic registry and shall also issue a notice pointing out the defects or incompleteness in the e-Form or document at the last intimated e-mail address of the person or the company which has filed the document, calling upon the person or company to file the e-Form or document afresh along with fee and additional fee, as applicable at the time of actual re-filing, after rectifying the defects or incompleteness within a period of thirty days from the date of the notice:

Provided that in case the e-mail address of the person or the company in question is not available, the intimation shall be given by the Registrar by post at the last intimated registered office address of the company or the last intimated address of the person, as the case may be and the Registrar shall preserve the facts of the intimation in the electronic record.

 

[4][(7) Any further information or documents called for, in respect of application or e-form or document, filed electronically with the Ministry of Corporate Affairs shall be furnished in Form No. GNL-4 as an addendum]

 

Rule 11. Vacation or removal of directors.—(1) In the event of vacation or removal of directors before approving or invalidating Form No DIR-12, the Registrar shall verify the documents as to correctness of contents and whether adequate supporting documents namely, copy of board resolution, copy of notices sent for calling board meeting or copy of minutes of board of directors reflecting voted for or against.

(2) If the Registrar on verification of documents further finds that the company has violated any of the provisions of the Act or rules, he shall refer the matter to the Regional Director concerned, who shall enquire the matter by giving an opportunity to the person who has been removed or vacated as director and convey the decision of the matter to the Registrar within ninety days from the date of reference to him by the Registrar.

 

 

Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2015

[Effective from 9th September, 2015]

Notification No. G.S.R. _ (E) dated 9-9-2015. – In exercise of the powers conferred by sub-sections (1) and (2) of section 469 read with section 398 of the Companies Act, 2013 (18 of 2013), and in supersession of the Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2011, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely:

1. Short title and commencement.— (1) These rules may be called the Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2015.

(2) They shall come into force from the date of their publication in the Official Gazette.

2. Definitions.— (1) In these rules, unless the context otherwise requires,–

(a) “Act”‘ means the Companies Act, 2013;

(b) “Annexure” means annexures appended to these rules;

(c) “Documents and forms” means the documents and forms required to be filed with any authority as specified under the Act or rules or regulations made thereunder;

(d) “Extensible Business Reporting Language” (XBRL), means a standardized language for communication in electronic form to express, report or file financial information by the companies under the Act;

(e) “Taxonomy” means in XBRL, an electronic dictionary for reporting the business data as approved by the Central Government in respect of any documents or forms indicated in these rules.

(2) Words and expressions used in these rules but not defined and defined in the Act or in the Companies (Specification of definitions details) Rules’ 2014 shall have the meanings respectively assigned to them in the Act and said rules.

Applicable Rules

Companies (Filing of Documents and Forms in Extensible Business Reporting Language), Second Amendment, Rules, 2017

Notification No. G.S.R. 1480(E).—In exercise of the powers conferred by sub-sections (1) and (2) of section 469 read with section 398 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2015, namely:—
1. Short title and commencement.—(1) These rules may be called the Companies (Filing of Documents and Forms in Extensible Business Reporting Language), Second Amendment, Rules,2017.
(2) They shall come into force from the date of their publication in the Official Gazette.

3. Filing of financial statement with Registrar.—The following class of companies shall file their financial statement and other documents under section 137 of the Act with the Registrar in e-form AOC-4 XBRL given in Annexure-I for the financial years commencing on or after 1st April, 2014 using the XBRL taxonomy given in Annexure II, namely:-

• all companies listed with any Stock Exchange(s) in India and their Indian subsidiaries; or
• all companies having paid up capital of rupees five crore or above;
• all companies having turnover of rupees hundred crore or above; or
• all companies which were hitherto covered under the Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2011:

Provided that the companies in Banking, Insurance, Power Sector and Non-Banking Financial companies are exempted from XBRL filing.

4. Filing of cost audit report.—A company required to furnish cost audit report and other documents to the Central Government under sub-section (6) of section 148 of the Act and rules made thereunder shall file such report and other documents using the XBRL taxonomy given in Annexure-III for the financial years commencing on or after 1st April, 2014 in e-Form CRA-4 specified under the Companies (Cost Records and Audit) Rules, 2014.

 

Applicable Circulars

Certification of E-forms/non e-forms under the Companies Act, 2013 by the Practicing Professionals — regarding

General Circular No. 10/2014, dated 7-5-2014

The Ministry has allowed registered Members of the professionals bodies (the ICAI, ICSI and the ICOAI) to authenticate correctness and integrity of documents being filed by them with the MCA in electronic mode. Details of documents required to be certified have been given in the notification dated 28/04/2014 available on the MCA portal.

2. In this regard attention is invited towards the requirement of authentication of documents prescribed under the Companies (Registration Offices and Fees) Rules, 2014 which elaborate on the responsibility. Further, Rule 10 of ibid the Registrar is to examine e-forms or non e-forms attached and filed with general forms on MCA portal viz. to verify whether all the requirements have been complied with and all the attachment to the forms have been duly scanned and attached in accordance with the requirement of above said rules.

3. Where any instance of filing of documents, application or return or petition etc. containing false or misleading information or omission of material fact or incomplete information is observed, the Regional Director or the Registrar as the case may be, shall conduct a quick inquiry against the professionals who certified the form and signatory thereof including an officer in default who appears prima facie responsible for submitting false or misleading or incorrect information pursuant to requirement of above said Rules; 15 days notice may be given for the purpose.

4. The Regional Director or the Registrar will submit his/her report in respect of the inquiry initiated, irrespective of the outcome, to the E-Governance cell of the Ministry within 15 days of the expiry of period given for submission of an explanation with recommendation in initiating action u/s 447 and 448 of the Companies Act, 2013 wherever applicable and also regarding referral of the matter to the concerned professional Institute for initiating disciplinary proceedings.

5. The E-Gov cell of the Ministry shall process each case so referred and issue necessary instructions to the Regional Director/Registrar of Companies for initiating action under section 448 and 449 of the Act wherever prima facie cases have been made out. The E-Gov cell will thereafter refer such cases to the concerned Institute for conducting disciplinary proceedings against the errant member as well as debar the concerned professional from filing any document on the MCA portal in future.

6. The Registrar shall forward a fortnightly report to the concerned Regional Director as well as to the E-Gov Division. Thereafter, the Regional Director shall forward a consolidated report to the Joint Secretary E-Governance Division on or before 7th of every month as per the prescribed proforma (copy enclosed).

7. This issues with the approval of the Secretary.

PROFORMA FOR FORTNIGHTLY REPORT BY ROC

• For the period from ……… to ……..

Sl. No.	Name of the professional	Member of the institute	Membership no/cp no.	Details of the case	Remarks

 

PROFORMA FOR MONTHLY REPORT BY RD FOR THE MONTH OF ………..

Sl. No.	Name of the  ROC	Details  of the professional	Membership no/ CP no.	Fact of the case	Remarks

 

[1]    Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2015 vide Notification No. G.S.R……(E) dated 9^th September, 2015.

[2]          Inserted by the Companies (Registration Offices and Fees) Amendment Rules, 2014 vide Notification No. G.S.R. 297(E)  dated 28^th April, 2014..

[3] Substituted by the Companies (Registration Offices and Fees) Amendment Rules, 2014 vide Notification G.S.R. 297(E) dated 28^th April, 2014. Prior to the substitution it read as under:

“(1) The Central Government shall set up and maintain a secure electronic registry in which all the applications, financial statement, prospectus, return, register, memorandum, articles, particulars of charges, or any particulars or returns or any other documents filed under the Act to be electronically stored.”

[4] Inserted by the Companies (Registration Offices and Fees) Amendment Rules, 2015 vide Notification No.G.S.R. 122(E) dated 24^th February, 2015.

[5] Substituted by the Companies (Registration Offices and Fees) Second Amendment Rules, 2016 vide Notification No. G.S.R. 1049(E) dated 7th November, 2016. Prior to the substitution it read as under:
“AOC-4- certification by a Chartered Accountant in whole-time practice;”

[6] Substituted by the Companies (Registration offices and Fees) Second Amendment Rules, 2018 vide Notification No. F. No. 01/16/2013- CL-V-Pt -I dated 7^th May, 2018. Prior to the substitution it read as under:

“provided that no re-submission of the application is allowed in the case of reservation of a name through web service – RUN”

[7] Omitted the word “Prospectus”  by Companies (Amendment) Act, 2019 vide notification No. File No. 1/5/2019-CL-I dated 14th August, 2019.