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TMI Blog2012 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... d 8th April, 2009 received from the complainant as well as written representation dated 13th April, 2009 received from the respondent. After considering the report, the Council decided to accept the report thereby holding the respondent guilty of professional misconduct falling within the meaning of Clause (7) of Part- I of the Second Schedule under Section 22 read with Section 21 of the Chartered Accountants Act, 1949. It has accordingly recommended to this Court that the name of the respondent be removed from the Register of Members for a period of three years. This is how we are called upon to deal with this reference. 2. The facts which emerge from the record are that the Commissioner of Income Tax, New Delhi (hereinafter referred to as „the complainant‟) sent a complaint dated 7th November, 2002 in which following allegations were made by him:- "Shri Subhash Chand Jain is Proprietor of M/s Jain Sons Exports India (hereinafter referred to as the "Firm"). He is being assessed by ACIT, Circle 19(1), New Delhi. During the course of assessment proceedings for A.Y. 98-99, the Assessing Officer has noted that Shri Subhash Chand Jain‟s export turnover was Rs. 82,51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting held on 6-8th July, 2005 and it decided to refer the case to the Disciplinary Committee for inquiry. The Disciplinary Committee examined the complainant as well as the respondent and allowed both of them to make their submissions. It submitted its report dated 3rd February, 2008 giving the opinion that the respondent was guilty of professional misconduct. This report was sent to both the parties who made their written representations and after considering the entire material, the report of the Disciplinary Committee was accepted. 3. Notice of this reference was sent to the respondent who filed counter affidavit, the respondent has denied the charges and submitted that the recommendations of the Disciplinary Committee be not accepted as the findings are not correct. Without prejudice to this contention, it is submitted that the respondent has been in practice for the last 21 years and he has served the profession with integrity. There is no single incident of professional misconduct or negligence. Even in the instant case, he could not put up his defence properly because he had suffered severe paralytic attack and the clients/assessee had taken away the file. It is thus plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberately withheld the complete questionnaire and answer thereto and since that document was not furnished, it amounted to denial of proper opportunity. He also argued that insofar as the respondent is concerned, he had issued the certificate dated 20th June, 1998 after taking every precaution and due care and had sent all the documents duly signed by the assessee. The copies of these documents could not be filed by him on record as the complete file was taken away by the assessee when the respondent was struggling for his life after the severe paralytic attach. 7. The aforesaid explanation of the respondent does not inspire any confidence. The relevant documents and the information was supplied to the respondent. The entire controversy was about the certificate issued by the respondent certifying that the exports were duly made and payments had been received by the assessee against those exports. It has been established on record that no such payment was received. Not only the assessee accepted this fact when he was confronted with this aspect during the assessment proceedings whereby the claim of deduction under Section 80HHC of the Act was rejected. Once it is established that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the erring individual. It is to be noted that for breach of trust by a person entrusted with property or dominion over it, action under criminal law can be taken. When considered in that background, disclosure of information which would not have otherwise come within his knowledge, but for his professional appointment, without consent of his client is an act of grave professional misconduct. As observed by the Apex Court in the context of professional misconduct of an Advocate, an act which is done otherwise than with utmost good faith is unprofessional. (See Pandurang Dattatreya Khandekar Vs . The Bar Council of Maharashtra, Bombay & Ors. AIR1984SC110). 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 a Solicitor Ex Parte the Law Society (1912) 1 KB 302, Darling, J. adopted the definition of "infamous conduct in a professional respect", on the part of a medical man as stated in Allinson Vs. General Council of Medical Education and Registration (1894) 1 QB 750, and applied to the same professional misconduct on the part of Solicitor, and observed:- "If it is shown that a medical man, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce the following discussion from this judgment:- "19. In so far as instances by the respondent are concerned, we are inclined to give learned counsel for the Institute that they may not become the basis for awarding the penalty of reprimand. Each case has to be viewed at its own facts. In the present case, the respondent was already in the employment when it obtained Certificate of Practice as well. Unlike, the case of Arvind Kumar (supra) where he was already having a Certificate of practice but he while taking the employment he did not take prior permission of the Institute. Further, there was another serious charge that during this period of employment, he had failed to pay stipend to his articled clerk in violation of provisions of the Act. Initially, the defence put up by him qua this charge was that after 1985, he was in part time employment with M/s IRCON and was given permission to practice. This defence has also proved as false. The documents obtained from M/s IRCON which are produced by the Institute clearly demonstrate that the respondent remained in full time employment. There is yet another charge against the respondent namely in the „„Form of Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has contributed to delay. Thereafter, the matter was referred to the Disciplinary Committee and first meeting of the Committee was held only in February, 1998 almost three years after the submission of the Written Statement by the respondent. The respondent pleaded guilty vide his letter dated 12th March, 1998 i.e. after a month of first hearing. However, again time was taken by the Disciplinary Committee. Even when the respondent had pleaded guilty vide letter dated 12th March, 1998, the Disciplinary Committee took almost two years in submitting its Report which was sent to the respondent on 17th January, 2000. Though, reply to this was sent by the respondent in February, 2000, the Council recorded its finding in its meeting held on 9th March, 2002 thereby taking two more years to take decision. The present Reference was filed in the year 2002 which kept pending for one or the other reason in this Court. Taking all these facts cumulatively, we are of the opinion that after a gap of more than twenty years, imposition of the penalty of removal from the Register of Members the name of the respondent for a period of three months would not be proper. It would totally disturbed and dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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