TMI Blog2001 (12) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed by Mrs. Sushma Shourie in which the allegations were made to the following effect : (1) The respondent had failed to appear before the ITO in response to the notice under sections 143(2) and 142(1) of the Income-tax Act, 1961 for the assessment year 1988-89. Resultantly, the assessment was made ex parte under section 144 of the Act at a total income of Rs. 2,57,361 as against declared income of Rs. 41,170. (2) The respondent even failed to appear before the Commissioner (Appeals) filed against the aforementioned order, resulting in dismissal of the appeal. (3) The respondent falsely conveyed to the complainant that the stay of the demand applied for had been granted whereas the fact was that the complainant was served with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Income-tax Department and even if paid, the dates were not intimated. (7) False assurances, gross negligence and lapses on the part of the respondent had resulted in the attachment of the complainant s property and bank Account as well as a heavy demand of additional tax which might increase due to levy of penalties and the same is beyond her capacity to pay even after liquidating her total assets. 3. On receiving this complaint by the institute, a copy thereof was sent to the respondent wherein he was requested to submit his written statement. The above request was followed by three remainders but the written statement was not filed. In accordance with the provisions contained in regulation 12(11) of the Act, the papers contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as charged by the complainant and found him guilty of professional misconduct under clause (7) of the Part I of Second Schedule to the Act within the meaning of sections 21 and 22. 5. On receiving the report of the Disciplinary Committee, the complainant as well as the respondent filed their respective written representations for perusal of the council. At the time of considering the report, both the complainant and the respondent appeared in person before the council and made their submissions. On consideration of the report of the Disciplinary Committee and the oral submissions made by the parties, the council in its meeting held on 6-12-1994 accepted the report of the Disciplinary Committee and found the respondent guilty of profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he member ought to be removed from the register for a period exceeding five years or permanently, it shall not make any order referred to in clause ( a ) or clause ( b ), but shall forward the case to the High Court with its recommendation thereon. (5) Where the misconduct in respect of which the council has found any member of the Institute guilty is misconduct other than any such misconduct as is referred to in sub-section (4) it shall forward the case to the High Court with its recommendations thereon." 7. We are concerned with sub-sections (4) and (5). This appears to be a case which is covered by sub-section (5), as the Council has found the respondent to be guilty of misconduct of a category other than those referred to in sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious dates before the Assessing Officer as well as the Commissioner of Income-tax (Appeals), was an act of sheer carelessness. The non-appearance of the Respondent resulted in ex parte orders which created considerable problems for the complainant and she had to undergo lot of harassment. The conduct of the Respondent in not keeping a tract of the appeal papers shows his carelessness. The Respondent had acted in most irresponsible manner and had thus put the complainant to financial loss, mental stress and strain." 9. The council considered the aforesaid report along with the representations of the complainant as well as the respondent and also gave them personal hearing. It decided to accept the report of the Disciplinary Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, but also is likely to have effect on credibility of the profession as whole. That is why the anxiety of the Legislature to punish the erring individual. It is to be noted that by breach of trust by a person entrusted with property or dominion over it, action under criminal law can be taken. As observed by the Apex Court in the context of professional misconduct of an Advocate, that an act which is done otherwise than with utmost good faith is unprofessional. ( See Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra , Bombay AIR 1984 SC 110). The test of what constitutes "grossly improper conduct in the discharge of professional duties" has been laid down in many cases. In the case of in re : A Solicitor Ex Parte the Law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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