28 March 2015
Does appointment of 1st auditor require obtaining written consent, certificate and filing of form ADT-1 ?
The appointment of first auditor is governed through section 139(6) which starts with a non-obstante clause [notwithstanding anything contained in sub-section (1)] and it is sub-section (1) which requires obtaining consent & certificate from auditor and filing of form ADT-1 with ROC.
Interpretation of “notwithstanding anything contained….”:- As per Supreme court, the non-obstante clause is used to avoid the operation and effect of all contrary provisions. In case any departure between non-obstante clause and other provisions, no-obstante clause will prevail.
Since section 139(6) does not speak anything contrary to section 139(1) as far as obtaining of consent, certificate and filing of form is concerned therefore in can be interpreted that ADT-1 should be filed with ROC for first auditor also.
Further if you think that form is to be filed only under 139(1), then why there is reference of "Casual Vacancy" in the e-form ADT1 itself when it falls under 139(8)?
How ROC will come to know that appointment is under maximum allowed limit for an Auditor?
Thus, as per my view, Form should be filed whenever Auditor is appointed whether in BM or Share Holders' Meeting.
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