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February 11, 2021

Delhi HC order Govt to include Advocate for incorporation of Company and LLP in MCA

by CA Shivam Jaiswal in Legal Court Judgement, MCA Circular

Delhi HC order Govt to include Advocate for incorporation of Company and LLP in MCA

The below order was passed by Delhi High Court

1. This hearing has been done through hybrid mode (physical and virtual hearing).

2. The present petition has been filed challenging the non-providing of a field for Advocates to register companies and LLPs on the current Ministry of Corporate Affairs’ (hereinafter. ‘MCA‘) portal.

3. The case of the Petitioner is that in 2007, the MCA portal permitted Chartered Accountants, Company Secretaries and Cost & Work Accountants to register as practising professionals and undertake incorporation of companies and LLPs for their clients. An amendment took place in the Companies Act, 2013 in 2014 by which even Advocates were permitted to file documents for incorporation of companies. For the said purpose, an Advocate would have to first register himself/herself as a practicing professional.

However, the said amendment was not implemented in the tool kit which is used by the MCA, Therefore, even today, Advocates are unable to register companies/LLPs on behalf of their clients. Hence, the Petitioner prays that consequential amendment be carried out in the MCA tool kit permitting Advocates who are enrolled with the Bar Council to register as professionals in the MCA portal.

4. A perusal of Section 7(1) (b) of the Companies Act, 2013, clearly shows that Advocates can file documents for incorporation of a Company. This would be true even in the case of LLPs. The MCA’s portal is however stated to have no provision made for Advocates who are members of Bar Councils and Bar Councils are not provided as an option in the list of Councils. If this is the position, the same would be discriminatory qua Advocates and would need to be rectified.

5. Mr. Ajay Digpaul. Id. CGSC to seek instructions in the matter and to file an affidavit on record within two weeks. Let a decision be taken by the appropriate authority on this issue and be placed before the Court.

6. List on 23rd March. 2021.

The below order was passed by Delhi High Court

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