TMI Blog2016 (8) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... re purely commercial. While selling the shares held by him the respondent was not acting as a Chartered Accountant. He was not discharging any function in relation to his practice as a Chartered Accountant.The Reference is accordingly answered by declaring the law as above and not inflicting any penalty upon the respondent. - CHAT A. REF.4/2012 - - - Dated:- 16-8-2016 - MR. PRADEEP NANDRAJOG MS. PRATIBHA RANI JJ. Relator Represented by: Mr. Rakesh Aggarwal, Advocate with Mr. Pulkit Agarwal, Advocate Respondents Represented by: None. PRADEEP NANDRAJOG, J. (ORAL) 1. This is a reference under Section 21(5) of the Chartered Accountants Act, 1949. The penalty proposed is removal of respondent No.1 s name from the Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Accountant when he sold the shares to him. Howsoever deplorable may be the conduct of respondent No.1, question would be : Would the conduct be subject to disciplinary control by the Council. 5. Learned counsel states that harmoniously read, Section 21 and 22 of the Chartered Accountants Act, 1949 would make liable the offending act of respondent No.1 as an actionable misconduct. 6. Section 21 of the Act prescribes the procedure to be followed when a complaint concerning misconduct of a member of an Institute is received. Section 22 defines misconduct. It reads as under:- 22. Professional misconduct defined For the purpose of this Act, the expression professional misconduct shall be deemed to include any act or omission spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme of the material provisions of the Act. The Act came into force in 1949 and it was passed because the Legislature thought it expedient to make provision for the regulation of professional accountants and for that purpose it established the Institute of Chartered Accountants. 10. Section 2, Sub-Section (1)(b) defines a Chartered Accountant as meaning a person who is a member of the Institute and who is in practice . Sub-Section (2) of Section 2 provides that a member of the Institute shall be deemed to be in practice when, individually or in partnership with chartered accountants, he, in consideration of the remuneration received or to be received, does any of the acts mentioned in the four clauses of the sub-Section. The four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial and taxation matter or may take up an appointment that may be made by Central or State Governments and Courts of law or any Legal Authority, or may act as Secretary in his professional capacity not being an employment on a salary-cum-full time basis. 12. In the decision reported as AIR 1958 SC 72 Council of Institute of Chartered Accountants Anr. vs. B.Mukhreja, a Chartered Accountant who had been appointed as a liquidator was held liable for professional misconduct on the reasoning that Regulation 78 provided for a Chartered Accountant to act as a liquidator and thus while acting as a liquidator Sh.B.Mukhreja would be deemed to be in practice as a Chartered Accountant. The judgment brings out that the acts of omission or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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