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TMI Blog2017 (5) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... sury unit of Income-tax Department, at Agra, a total sum of Rs. 2,514/-, being the last digit of amount, outstanding against partners of M/s Bharat Gas Agencies and M/s United Pulverisers. He interpolated Assessee's copies of challans so as to show figures of Rs. 1,242/-, Rs. 192/-, Rs. 435/-, Rs. 512/-, Rs. 8,751/- and Rs. 1,254/-. He presented forged copies of challans to partners of Assessees and collected/claimed amounts allegedly paid on behalf of Assessees. This information was received by ICAI on 24.09.1978. 3. In accordance with provisions of Regulation 11(5) of Chartered Accountants Regulations, 1964 (hereinafter referred to as "Regulations 1964"), above information was conveyed to respondent vide ICAI letter dated 14.02.1980. He was permitted to submit written statement, if any, duly verified. Respondent submitted reply vide letter dated 18.10.1980 (Annexure-B to the Reference Paper Book) denying allegations made against him. Besides others, he also stated that since First Information Report has also been lodged against him under Sections 468, 471, 120-B I.P.C. at Police Station Hari Parwat, Agra, wherein he has been enlarged on bail, and since matter is sub-judice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld proceed on 27.05.1986, respondent sent a letter seeking adjournment on the ground that he has filed a Writ Petition in Allahabad High Court on 15.05.1986 and, therefore, enquiry at this stage be deferred. DC accepted request of respondent and adjourned the matter. Next date fixed was 19.08.1986 at Agra. Information was conveyed to respondent, who also undertook to participate and cooperate in enquiry. 13. However, no meeting could be held on 19.08.1986 and it was adjourned to 28.11.1986 at Agra. It was again adjourned on the request of respondent's father communicating that he (respondent) had suffered some injuries in an accident. Next date was fixed by DC on 20.02.1987 when respondent was also present. Besides him, following persons summoned as witnesses, also appeared before DC : (i) Shri SM.Misra, Income-tax Officer, Agra. (ii) Shri R.K.Mittal, Income-tax Officer, Meerut. (iii) Shri H.G.Seymour, Income-tax Officer, (Retd.), Meerut. (iv) Shri R.N.Agrawal, Advocate, Agra (Former partner of United Pulverisers). (v) Shri R.N.Garg, Chartered Accountant, Agra. 14. Two other witnesses, i.e. Sri T.D.Chandana, Income-tax Officer (Retd.), Agra and Major H.S.Sawhney (Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses could identify the handwriting in the challans, whereas the payments deposited in the SBI are in the handwriting of the Respondent. However, from the copy of the bill which has been produced by R.N. Agarwal indicating the various payments made on account of Income-tax as on 24.3.1979 submitted by the Respondent clearly indicates that the Respondent was responsible for claiming the reimbursement of the payments purported to have been made in the said bill. Similarly, the vouchers produced by Major Sawhney (Retd.) of Bharat Gas Agencies, which are evidently being kept in the ordinary course of business clearly indicate reimbursement made to Shri D.K.Agrawal namely of Rs. 600/-, Rs. 711/- and Rs. 851/- on 26.3.1979. Besides these, certain other payments have also been made during the year. The voucher dated 24.3.1979 indicates payments of Rs. 1,621/- made to Chartered Accountant indicating the balance payment of Rs. 600/- to pay. 36. It is also evident from the two written sheets produced by the witnesses which are in the handwriting of the Respondent, and confirmed by the Respondent as in his own handwriting that the Respondent has been responsible for claiming income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal hearing, is hardly justified. 41. In view of what has been stated above, the Committee is of the view that the Respondent has involved himself in respect of two parties namely; United Pulverisers and Bharat Gas Agencies in depositing the money only to the extent of the last digit and claiming the amount in full in respect of the payments of Rs. 1,242/-, Rs. 192/-, Rs. 435/-, Rs. 512/-, Rs. 1,254/- and Rs. 8,751/- indicated in the "information" and, therefore, is guilty of "other misconduct" under Section 22 read with Section 21 of the Chartered Accountants Act, 1949." (emphasis added) 19. A copy of the aforesaid report was forwarded to respondent vide ICAI's letter dated 20.08.1990 and he was given opportunity to submit representation, if any, and if so advised, to appear before Council on 14.09.1990, either in person or through a Member of ICAI, duly authorized. Respondent submitted representation dated 05.09.1990. On his request, consideration on report was postponed by Council of ICAI, and, deferred to be considered in the meeting held from 6th to 8th December 1990. Respondent was informed vide letter dated 12.11.1990 to avail opportunity of oral hearing by appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) On receipt of any case under sub-section (4) or sub-section (5), the High Court shall fix a date for the hearing of the case and shall cause notice of the date so fixed to be given to the member of the Institute concerned, the council and to the Central Government, and shall afford such member, the Council and the Central Government an opportunity of being heard, and may thereafter make any of the following orders, namely :- (a) direct that the proceeding be filed, or dismiss the complaint, as the case may be; (b) reprimand the member; (c) remove him from membership of the Institute either permanently or for such period as the High Court thinks fit, (d) refer the case to the Council for further inquiry and report." (emphasis added) 21. Counsel for respondent contended that report has been submitted by DC after holding ex-parte enquiry and hence, it is liable to be rejected, being in violation of principle of natural justice; in respect of same matter, if criminal proceedings were going on, it was not open to DC to proceed with enquiry and submit report; no handwriting expert was examined to draw an inference that any kind of tampering etc. has been made by responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made through Shri D.K.Agrawal. The witness also produced two papers which are in the handwriting of Shri D.K.Agrawal wherein the exact figures of the challan was mentioned in his own handwriting which was paid by the Respondent and then claimed the money from the witness. When the Respondent was confronted to ascertain whether the said papers were in the handwriting of the Respondent, he admitted that these were in his own handwriting. The Respondent maintained that the appropriate papers containing these details are in his own handwriting." 24. The report of DC shows that during the course of examination of witnesses, when respondent was present, he was confronted with relevant facts and his stand has been noted by DC in its report. Learned counsel for respondent could not show anything so as to persuade us to form a view that findings recorded by DC are on account of misreading of fact or otherwise perverse. It is in these facts and circumstances, we are in agreement with the report as well as resolution of affirmance of Council and confirm that respondent is guilty of "other misconduct", warranting appropriate punishment therefor. 25. For the purpose of awarding punishment, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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