9911796707
TMI Blog2018 (8) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... f Investigation of Professional and Other Misconduct and Conduct of Cases) Rules, 2007, against the Institute of Chartered Accountants of India and others challenging the impugned order, whereby, the Board of Discipline held him guilty under Clause (10) of Part-I and Clause (2) of Part-IV of the First Schedule to the Chartered Accountants Act, 1949 and awarded punishment of removal of name of the Appellant from Register of Members for a period of one month besides a fine of Rs. 50,000/- (Rupees Fifty Thousand Only), to be paid within 60 days of the receipt of the aforesaid Order. The said Clauses (10) of Part-I and Clause (2) of Part-IV of the First Schedule of the Act read as under:- "First Schedule:- PART-I: Professional misconduct in relation to chartered accountants in practice A chartered accountant in practice shall be deemed to be guilty of Professional Misconduct, if he - (10) Charges or offers to charge, accepts or offers to accept in respect of any professional employment, fees which are based on a percentage of profits or which are contingent upon the findings, or results of such employment, except as permitted under any regulation made under this Act; PART-IV: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rranging bogus bills, accommodation entries and circular transactions for trading in coal through bank LC limits for various other parties. 4.2 The Board noted that the Respondent in his statement to Income Tax Department on 8th October, 2009 has admitted that Mr. R. S. Tiwari, G. M. (Finance) of SHEL requested him to arrange for the Bills. He further admitted that the bills were made on his personal computer and he had obtained signatures of these persons on the bills. Most of the bank Cheque were obtained by him and handed over to Mr. R. S. Tiwari. It was also submitted by the Respondent that his office was used as Liaoning between Company and these 16 persons. 4.3 The Board further observed that the Respondent, Appellant herein, in his statement to Income Tax Department on 23rd October, 2009 had admitted as under: "Commission in respect of the transactions described above and earlier during his statement recorded u/s 131 on 8th October, 2009 done through accounts in the name of various sub-contractors was charged @0.25% of the bill amount. In respect of transactions done through accounts & in the name of Shri Mahendra Bokade and Shri Ganesh Prasad Shukla commission was cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. The statement is reproduced below: Q2 I am showing you the statements recorded u/s 131 of the following persons on various dated between 15th September, 2009 and 30th September, 2009:- i. Sachin Agarkar ii. Mahendra R. Bokde iii. Shirish B. Agarkar iv. Santosh S. Morya v. Ravi S. Mohod. vi. Sanjay Ramnaresh Yadav vii. Ashwal Yadav viii. Shivkumar Sompal ix. Ganesh Prasdlal Bihari Sukla x. Sainath Suresh Kayarkar xi. Baban Yadav xii. Ravindra H. Kharparde Kindly go through the same and give your comments?" Ans. I have gone these statements of the above mentioned 12 person. It is true that bills for sub-contract work done for Sunil Hitech Engineers Ltd. (SHEL) were raised in the names of these 12 persons mentioned above. All these bills were made on the personal computer in my office. Mr. Radhe Shyam Tiwari, G.M. (Finance), SHEL had requested me to arrange for bills in the name of above persons accordingly, the bills were prepared and signatures of above persons in the respective bills were obtained by me from them most of the blank cheques signed by each of these persons were also obtained from them by me handed over to Shri R.S. Tiwari, GM (Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for artificially hiking the turnover. 25. In view of the above, the assessment made by the AO is upheld. The addition made by the AO of the Commission amounting Rs. 75, 81,304/- is confirmed. The AO is accordingly directed." 4.5 The Board noted that the Respondent accepted all above facts in his statement recorded by the Department without any denial. Further the addition made by the AO of the Commission amounting to Rs. 75,81,304/- has been confirm by the CIT (Appeals). 4.6 Thus, the Board held that there does exits the involvement of the Respondent in arranging accommodation entries and had in fact received commission for arranging those entries which was also added to his Income as undisclosed income. 4.7 The Board also noted that further to the receipt of the Prima Facie Opinion (PFO) in the matter, the only defence of the Respondent was that there is nothing afresh to inform institute in the matter which in itself points to the admission of the charges alleged and lack of any further defence/evidence from his side. 5. Also vide Para (14) of the Report, the Board of Discipline elaborately dealt with the Order No. CIT (A)-3/517/2011-12 dated 21st July, 2016 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was taken under coercion. 10. The Appellant, also raised a new plea vide written reply filed on 18th July, 2018 before us that he had received the commission amount as a trustee on behalf of various contractors. 11. Adversely, the Learned Counsel Shri Ravinder Agarwal appearing on behalf of the Institute of Chartered Accountants of India cited various instances before us to the effect as to where the Appellant has admitted the commission and thus vehemently supported the Order passed by the Board of Discipline. Likewise, Mr. Aakash Dewangan, Additional Commissioner of Income Tax appearing on behalf of Respondent No. 2 also supported the Impugned Order. 12. We have heard rival submissions of all the parties and also examined all the documents, pleadings and evidence produced before us as well as before the Board of Discipline. 13. Pursuantly, we have noted that all Cheque books of the said bogus concerns were lying with the Appellant and the said bogus bills were made on the computer of the Appellant. We also find that there is admission of Appellant himself before the Income Tax Department that he arranged bogus bills for commission. His reply to Question No. 15 of his stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pline, which is manifestly clear from Para No. (8) of the Impugned Order, which reads as hereunder:- "That CA. Durga Prasad Sarda in his oral submissions before the Board while reiterating his written representation categorically accepted his guilt but stated that the quantum of commission charged was less. He also stated that it is the first time in his professional career that he has been held guilty of misconduct." 17. Even before us, the Appellant has admitted that he had taken the commission but it was taken by him as a trustee on behalf of various contractors, which, considering the facts and circumstances involved in the matter, according to us is totally untenable. Further, the allegation of the Appellant that the Board of Discipline relied on statements of other persons or on documents not before it, is also not true as the Board of Discipline has relied only on the statement of Appellant himself and the aforesaid Order passed by the learned CIT (A). More so, the veracity of these documents has not been disputed by the Appellant anywhere and at any stage of the proceedings of this matter. 18. Consequently, when the Appellant has himself admitted charging commission at ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
