Introduction  

This blog is intended for professionals who certify e-forms for companies to be filed with the Ministry of Corporate Affairs (MCA), as well as those working in the secretarial, legal, and finance departments of companies, including directors and top-level management. Often, small technical issues can result in significant penalties. Therefore, understanding the law itself, rather than relying solely on opinions of professionals, is crucial.  

As the use of digitally signed documents becomes increasingly common in both government and private sectors in India, one critical question arises: Are digitally signed documents valid as attachments to MCA e-forms?  

In this blog, we will explore the legal perspectives surrounding digital signatures and examine their implications under the Companies Act, 2013, the Information Technology Act, 2000, and relevant rules.  


Understanding the Legal Framework & Ambiguity  

According to Rule 8(1) of the Companies (Registration Offices and Fees) Rules, 2014:  

"An electronic form shall be authenticated by authorized signatories using a digital signature."

This provision is clear and straightforward allows the use of digital signatures limited to e-forms only.

However, Rule 8(6) states:

"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 the authorized person."  

Rule 8(6) pertains to attachments to e-forms and mandates that documents attached to e-forms should be scanned copies of original signed documents bearing actual signatures. This distinction between digital signatures for e-forms and actual signatures for attachments may seem simple, but the non-obstante clauses of the Information Technology Act, 2000 introduce some complexity.  

Often, professionals argue that digitally signed documents can be attached to e-forms, pointing to the provisions of the Information Technology Act, 2000. However, when scrutinized, the correct legal position, as clarified in this blog, becomes evident.


Section 5 of the Information Technology Act, 2000

Section 5 of the Information Technology Act, 2000 provides:  

"Where any law provides that information or any other matter shall be authenticated by affixing a signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of an electronic signature affixed in such manner as may be prescribed by the Central Government."  

This section grants legal recognition to electronic signatures but does not impose a mandate on all government departments to accept digitally signed documents, read Section 6 and Section 9 below to understand this further. Further, there are two main parameters to be satisfied to bring Section 5 into effect - 1. Affixation of DSC; and 2. Authentication.  

Interpretation of "Authenticated by means of an electronic signature"  

The term "authenticated" in Section 5 must be understood in the context of Section 3(2) of the IT Act, 2000, which clarifies when the authentication of electronic records using digital signatures is effective.  

Section 3(2) explains that an electronic record is authenticated using an asymmetric crypto system and hash function, transforming the original record into another electronic record. This process ensures that the record remains secure and verifiable.

Authentication of Digitally Signed Documents

For authentication to be effective, the public key of the digital signature holder must be verifiable by the relevant authority or department. If the department cannot verify the public key of the signatory, the document cannot be considered authenticated under Section 5. This is a crucial point because attachments to MCA e-forms do not undergo the same authentication process as the e-forms themselves. 

When filing an e-form with the MCA, the Ministry collects the public key during the DSC (Digital Signature Certificate) registration process. This public key is then used to verify the authenticity of the e-form. However, no system exists to verify the public key of documents attached to the e-forms, which leaves attachments unauthenticated.This is the possible reason due to which MCA introduced linked form filing where MCA intended to allow the use of digital signatures for attachments.


Section 6 & 9 of the Information Technology Act, 2000  

Section 6 addresses the use of electronic records and signatures in government agencies:

(1) Where any law provides for—

 

(a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner;

 

(b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner;

 

(c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government.

 

(2) The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe—

 

(a) the manner and format in which such electronic records shall be filed, created or issued;

 

(b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause (a).

But Section 9 of the IT Act clarifies that:  

Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.

Thus, while the IT Act allows for electronic filing, it does not confer an absolute right for individuals or companies to demand that government agencies accept documents in electronic form. Acceptance of such documents remains at the discretion of the authority in question.


Electronic filing with government departments or authorities is privilege and not the right

After reading Section 9 of the Information Technology Act, 2000, we can conclude that as far as filing with respect to Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government is concerned, any person can’t insist any government or its authority to accept electronic records. It can be said that submission of records to government or its authorities in electronic manner is a privilege and not a right.

 
For example, if you have money in your bank, you may buy some goods and make UPI payments. Making UPI payment is a privilege, but what if the vendor don’t have the bank account?, in such a situation you can’t insist the vendor to open the bank account and accept the payments electronically. In the same manner, if a government or any of it’s authority have the setup to accept your documents electronically, verify the signatures on such documents, then you may submit the same and Information Technology Act, 2000 gives validity to such filings and signatures. But if any particular filing is specifically required in physical form, then you can’t insist the government to accept the same electronically. 


Conclusion  

In conclusion, Rule 8(1) of the Companies (Registration Offices and Fees) Rules, 2014 permits the use of digital signatures for e-forms. However, Rule 8(6) explicitly requires attachments to e-forms to bear actual signatures on the original documents. The provisions of the Information Technology Act, 2000 do not override the requirements of the Companies Act, 2013 as Section 6 & 9 of the Information Technology Act, 2000 provides specific provisions for Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government and keeping in view the requirement of authentication to bring Section 5 in effect. At last but not the least, scanned copies of original documents are electronic records only, e-forms are the way to submit copies of such records and digital signatures affixed on e-forms authenticate the submission of such documents collectively but do not exempt signing such orignial documents by hand. 

Therefore, digitally signed documents may not be valid as attachments to e-forms, unless specifically provided for by the MCA rules or the Companies Act, 2013. To avoid legal complications, it is advisable to use scanned images of original documents bearing actual signatures for attachments to e-forms.  

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Disclaimer:  
Our opinion may differ from that of other professionals and we do not intend to challange the same. Further, any statement in the above blog shall not be construed as legal advice. This blog is meant to highlight relevant facts, the legal framework, and our perspective, which is why we prefer using scanned copies of original documents bearing actual signatures as attachments to e-forms. This approach minimizes any potential risk to both ourselves and our clients. While there have been instances where the MCA has accepted e-forms with digitally signed attachments but there is no amendment in Rule 8(6) to allow the digital signing of attachments yet, therefore, we adhere strictly to the stance outlined in this blog to ensure we remain on the safe side. Further this blog is published in the month of September, 2024, any subsequent amendment in law may make this blog invalid.