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TMI Blog2018 (9) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... this count, we understand that the same was mentioned for discussion only and the same is not relevant for the purpose of examining final decision of the Disciplinary Committee on the issue of the said default of non-reporting of transactions on which TDS was not deducted u/s 194J as complained by the complainant. Accordingly, we are not giving any finding on the issue. Looking to all we feel that the “ends of justice” would meet, if the Appellant is awarded punishment to “Reprimand”. We, accordingly modify the Impugned Order of the Disciplinary Committee to this extent. Though, further, we direct the Appellant to be more cautious in future while dealing with such situations. - APPEAL NO. 10/ICAI/2018 - - - Dated:- 27-8-2018 - Hon ble Mr. Justice M.C. Garg Chairperson, Hon ble Mr. Sunil Goyal Member, Hon ble Mr. Kamlesh S. Vikamsey Member, Hon ble Mr. Praveen Garg Member And Hon ble Dr. Navrang Saini Member For the Appellant : Nil For the Respondents : Mr. Ravinder Agarwal, Advocate along-with Mr. Suneel Kumar, Assistant Secretary and Ms. A. Aruna Sarma, Senior Executive Officer, Disciplinary Directorate, ICAI ORDER 1. Being aggrieved by the Report dated 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 1,91,50,669/- for A.Y. 2008-09 and ₹ 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 Accountants Act, 1949. 4. Thereafter the matter was examined by the Disciplinary Committee and after examination of the complaint, written submissions, all written and oral evidence, further replies and after hearing the parties, the Disciplinary Committee gave the following findings:- 4.1 As regard the allegation relating to the failure to report contravention of provision of Section 194J, the Respondent stated that since the Doctors did not provide any professional service to the Hospital, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not appear before us due to illness of his mother. Nor any Counsel appeared on behalf of the Appellant. However, vide letter dated 30th July, 2018, the Appellant filed his written arguments/submissions before us and requested that the same may be considered and the Appeal be heard by the Authority. No request for adjournment was made. Hence, we considered the same and proceeded to decide the appeal finally. 7. The first ground of appeal pertains to condone the delay in filling the appeal. The Appellant has mentioned that he was not aware of the process of filing of an appeal and sought guidance from the Institute of Chartered Accountants of India to file the appeal and thereafter the appeal was filed. He also filed documents before us to this effect in support of his submissions. After considering the bonafide of the contention, the delay was condoned 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where tax was deductible by the auditee but not deducted by him. The CBDT vide Notification No. 208/2006 dated 10th August, 2006 had widened reporting requirements of Form 3CD. This Form came into effect for all audit reports signed on or after 10th August 2006. Admittedly in this matter the audit was carried out for the year ended on 31.3.2007 and audit report of the same was signed on 23.10.2007. Thus, it was the duty of the Appellant to report such transactions in the Form 3CD, which he failed to do. 15. Even the contention of the Appellant that the payment which was made to Doctors are not expenses of the assesse, was found to be incorrect as the Profit Loss Account of the said auditee for the year ended on 31st March, 2007 shows consultancy charges of ₹ 6,54,380/- appearing in the expenses side. Thus, it is incorrect to say that these are not expenses of the assessee. 16. We have c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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