9911796707
TMI Blog2018 (9) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... d Order), passed by the Disciplinary Committee of the Institute of Chartered Accountants of India under Section 21B (3) of the Chartered Accountants Act, 1949 read with Rule 19 (1) of the Chartered Accountants (Procedure of Investigation of Professional and Other Misconduct and Conduct of Cases) Rules, 2007, CA. Ishaq Esmail Lakkadghat (M. No. 120260), a practicing Chartered Accountant, Appellant herein, has filed this appeal against the Institute of Chartered Accountants of India and others, challenging the impugned order, whereby, the Disciplinary Committee holding him guilty under Clauses (7) of Part-I of the Second Schedule to the Chartered Accountants Act, 1949 awarded punishment of removal of name of the Appellant from the Register of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not been mentioned in the Tax Audit Report certified by the Respondent. 2.3 A survey was conducted u/s 133A on 30th September, 2009. A statement on Oath of the assessee was recorded, wherein the assessee has agreed of the payment made in cash to various Doctors amounting to Rs. 1,91,50,669/- for A.Y. 2008-09 and Rs. 2,13,77,220/- for A.Y. 2009-10. No TDS has been deducted which is required u/s 194 J of the Income Tax Act, 1961. 3. Accordingly, this complaint was taken up for investigation by the Director (Discipline), who vide Order dated 17th December, 2013, found the Appellant 'Prima Facie' Guilty of the professional misconduct falling within the meaning of aforesaid Clause (7) of Part I of the Second Schedule to the Chartered Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act. 4.2 In this regard, the Committee is of the view that it is for the assessee to reply on any judgment for making deduction of TDS on payment of consultancy fees u/s 194J. As per provision of the Income Tax Act, 1961 and Guidance notes on Tax Audit issued by the Institute, the Auditor is required to report as to whether any amount is inadmissible under Section 40 (a) the Income Tax Act, 1961. If the Assessee did not deduct TDS based on a judgment given in a particular case, the Respondent being a Statutory Tax Auditor was required to disclose the same in his report so as to enable the Income Tax Department to know the reason as to why TDS was not deducted by the Assessee u/s 194J of the Income Tax, 1961. 4.3 Since the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondoned by the Authority and the Appellant was allowed to proceed with appeal. 8. The only issue in other grounds of appeal with us is that the Appellant who carried the audit u/s 44AB of the Income tax Act, 1961 of Dr. Usman Shaikh Prop, Faujiya Hospital, for the year ended on 31st March, 2007, did not report about non deduction of the tax u/s 194J of the Income tax Act, 1961, from professional charges amounting to Rs. 5,45,715/- paid by the said hospital to various doctors. 9. The facts in this case are very brief and are admitted. The Appellant submitted his report for the above audit vide report dated 23rd October, 2007 in Form No. 3CB of the Income Tax Rules, attaching therewith a further statement of particulars in Form No. 3CD of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed Chartered Accountancy only in 2005, he was very new in the profession and it is possible that he did not understand the proper interpretation of Section 194J of the Income Tax Act 1961. Therefore he prayed that his mistake may be condoned and lenient view may be taken. 13. We have heard all the parties, examined all documents, evidences produced and pleadings on records. We have also examined the written submissions made by Appellant before us as well as before the Disciplinary Committee of the Institute. 14. It is very clear from the facts on record, which have been elaborated in detail in the order of Director (Discipline) and in the Impugned Report of the Disciplinary Committee that an Auditor was required to report instances w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plinary Committee holding him guilty under the aforesaid Clause (7) of Part-I of the Second Schedule to the Chartered Accountants Act, 1949 and upheld the same. 17. We have also observed that in the Impugned Order, there is reference of Section 40(a) (ia) of the Income Tax Act, 1961 while discussing the said default under section 194J as well as in terms of the requirements of Guidance Note on Tax Audit. However, no specific finding has been given on the same in this regard in the Order passed by the Disciplinary Committee of the Institute. 18. Additionally, on examination of the complaint, we found that there was no complaint by the complainant about not reporting of transactions falling under Section 40(a) (ia) of the Income Tax Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
