Hello Guys...
I obtained the DIN of one person two days back. Now I want to appoint him as director today in an existing company wef 30th July 2012(i.e. one month back).. So is it possible and more importantly legal?
Thanks in advance...
15 Replies
CA Gnanika
(CA )
(485 Points)
Replied 30 August 2012
Well legally it is not valid, because to be a director it is mandatory to obtain DIN. So the date of appointment will be with effect from date of obtaining DIN.
Anyway check out for other expert opinions too..
Sumit Jaiswal
(Company Secretary)
(818 Points)
Replied 30 August 2012
I dont think this would be legal.
Section 253 of the Companies Act says: No company shall appoint or re-appoint any individual as director of the company unless he has been allotted a Director Identification Number.
Every individual, intending to be appointed as director of a company shall make an application for allotment of Director Identification Number (DIN). Therefore, any proposed director of a company must ensure that he/she is having DIN and if not having DIN, it should be first obtained.
deepak
(Job)
(69 Points)
Replied 30 August 2012
Yes , it is legal , in my openion , DIN Can be obtained within 30 days from the date of appointment,
Thanks
Kirti Arora
(Company secretary CA final Student)
(75 Points)
Replied 31 August 2012
Dear Nayan Gupta
It is totally legal You can go for the appointment of director. You have obtained din within 30 days as it is statuory. One another thing is that you can appoint the director before 30th July by paying additional fees with form 32.
Companies Act says that No director can be appoint without first obtaining din but it also allow to appoint director from previous period. so there is no questioning regarding illegal. Legal wording
"266A. Application for allotment of Director Identification Number.
Every-
(a) individual, intending to be appointed as director of a company; or
(b) director of a company appointed before the commencement of the Companies (Amendment) Act, 2006, shall make
an application for allotment of Director Identification Number to the Central Government in such form, and manner
(including electronic form) alongwith such fee, as may be prescribed:
Provided that every director, appointed before the commencement of the Companies (Amendment) Act, 2006, shall
make, within sixty days of the commencement of the said Act, such application to the Central Government:
Provided further that every applicant, who has made an application under this section for allotment of Director
Identification Number, may be appointed as a director in a company, or, hold office as director in a company till such
time such applicant has been allotted Director Identification Number.
"NO WHERE MENTION THE PERIOD FOR OBTAINING DIN TO GET APPOINETED AS DIRECTOR"
(Guest)
Late of appointment of director can not be earlier than his obtaining DIN.
It is not legal as per proviso to section 253.
As per proviso to section 253 of the Companies Act, 1956, inserted by the Companies (Amendment) Act, 2006, w.e.f. 1-11-2006, no company shall appoint or re-appoint any individual as director of the company unless he has been allotted a Director Identification Number under section 266B.
With Regards
Neha
CS Ankur Srivastava
(Company Secretary & Compliance Officer)
(17853 Points)
Replied 01 September 2012
| Originally posted by : Sumit Jaiswal | ||
 |
I dont think this would be legal. Section 253 of the Companies Act says: No company shall appoint or re-appoint any individual as director of the company unless he has been allotted a Director Identification Number. Every individual, intending to be appointed as director of a company shall make an application for allotment of Director Identification Number (DIN). Therefore, any proposed director of a company must ensure that he/she is having DIN and if not having DIN, it should be first obtained. |
 |
As such practically it is possible for which MCA should take stept to relate the date of DIN to the date of Appointment to stop this.
In my opinion it is illegal.
Sumit Jaiswal
(Company Secretary)
(818 Points)
Replied 01 September 2012
Agree with Ankurji completely. This is not legal but this may be practically possible, if done this might go unnoticed. MCA should take corrective steps.
Kirti Arora
(Company secretary CA final Student)
(75 Points)
Replied 01 September 2012
Neha, Sumit and Ankur ji you are totally correct in regard to section 253 which says that
"253. ONLY INDIVIDUALS TO BE DIRECTORS.
No body corporate, association or firm shall be appointed director of a company, and only an individual shall be so
appointed.
1
[Provided that no company shall appoint or re-appoint any individual as director of the company unless he has been
allotted a Director Identification Number under section 266B.]"
Now read undermentiond section 266A
"266A. Application for allotment of Director Identification Number.
Every-
(a) individual, intending to be appointed as director of a company; or
(b) director of a company appointed before the commencement of the Companies (Amendment) Act, 2006, shall make
an application for allotment of Director Identification Number to the Central Government in such form, and manner
(including electronic form) alongwith such fee, as may be prescribed:
Provided that every director, appointed before the commencement of the Companies (Amendment) Act, 2006, shall
make, within sixty days of the commencement of the said Act, such application to the Central Government:
Provided further that every applicant, who has made an application under this section for allotment of Director
Identification Number, may be appointed as a director in a company, or, hold office as director in a company till such
time such applicant has been allotted Director Identification Number.
SO it is my conclsion that He can be remained director till the time of allotment of DIN. so his appointment is not illegal.
(Guest)
Hello Dhroovji,
Nowadays, DIN are allotted instantly as soon as the form is filed. So the possible time gap between making application for DIN and allotment of DIN by MCA has been brought to the minimum which was earlier around 2 weeks (at the time of physical submission of documents to DIN Cell).
Hence this proviso to section 266A has become redundant now which was earstwhile of relevance.
This is strictly my opinion. Contrary views are most welcome.
Best Regards
Neha
Sumit Jaiswal
(Company Secretary)
(818 Points)
Replied 03 September 2012
| Originally posted by : Neha Jain | ||
|
|
In my opinion, ROC may raise query later on when it comes to notice. So, as per good corporate practice it is better to avoid this. |
|
I think the same.
Aditya Soni
(CS Final Student Trainee)
(727 Points)
Replied 04 September 2012
Agree with Ankur ji and Neha.
Rules says that, every Existing director has to notify to the Company within 1 month. The Directors who were already holding the position. but for those who have become Director after that DIN Notification, will have to get the DIN then be appointed as a Director.
Regards,
Aditya
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