ICAI – Tendering- Council Retreat – Decision Reverted

In an unprecedented move, the recent concluded council meeting has taken back its decision of the 338^th Special Council Meeting prohibiting the members for tendering in the exclusive areas of practice of chartered accountants like audit and attestation services. The decision of taken back has been taken in totality so the regulator has opened up a WWF ring for all again.  

Recently ICAI came out with an Announcement on tendering MECHANISM TO MONITOR TENDERING issued by Professional Development Committee. The publication of this announcement has opened up a ponderous box and ultimately which resulted in taking back of such decision.

THE OPERATION RETREAT

At least six of the council members were interviewed after the publication of the announcement over tendering. To the surprise none of the member was aware of any such decision taken by the council. In recently concluded national conferences, the president was talking about the decision taken by the council in length, but never mentioned a decision over the tender as their achievement so it was sensing that there is something fishy about the decision of the council over tender. The decision of the council is yet to get its shape as another announcement, but it is being delayed because no one wants to break such news. The PDC which took the lead in announcing is also not interested to break this news by having an announcement eyeing the secretary of the institute to break this news.

FREE FOR ALL NOW- DUSTY DISTANCE FROM 338^th Meeting to 344 Meeting

Again, it’s free for all now. The tendering has given an open opportunity that members can even go to the lowest from Re 1. They feel there is no harm in carrying the profession in such spirit and certainly now Chartered Accountants shall be WWE participants who are free from any rules , any directions. It’s simply great that Supteshu jagrati is being replaced by cut throat the other.

Two years back, a decision on audit of cooperative banks was taken by the RBI, NABARD and state governments and it was left to the state governments that they can take their own decision to have the Empanelment or can also utilise the Empanelment of the RBI. Now Tender has already reached the first stage of banking and this year cooperative bank allotments were done through tenders. The invitation to tender was for a few of the category one firms. This makes all the sense to worry that Banking industry has seen the color of tender and its further advancement to concurrent audits of statutory bank audits will end this profession completely. In Hindi there is a popular saying “Mot Darwaja Dekh Gayi”.

There is no shame in strategic retreat if it lets you remain strong enough to go after the enemy later. But here we are heading for anger, fear and discrimination. So when you have already joined the band of a retreat, you have lost every chance to look at the deep roots of this menace of the tendering. This retreat shall definitely pay the high cost. At the very core stands the right of a man to retreat into his own home and there be freeing from unreasonable governmental intrusion has been abuse in totality without any call to retreat. Some people feel themselves God Father to the profession. Do they have any answer that why it was passed by the 338th council meeting? & why it was withdrawn from 344th the council meeting?

NO POWER OF REVIEW WITH COUNCIL

By adopting the retreat over tender the council has lost its soul and forgets that the council has no power to review its own decision. No such powers have been conferred on them by the statute. The decision to take back the earlier decision on the tender is bad in law. Reliance can be placed on:  Jan – 2004 Lokesh Dhawan v. Union of India 132 Taxman 431 (Del.) [BCAJ]

On a writ petition filed by the petitioner, the Delhi High Court upheld the decision of the Council and held as under:

“(i) It is well-settled that review is a creative of statute. In so far as a quasi-judicial authority is concerned, it has no power to review its own decision. The power to review must be conferred on it by the statute, expressly or by necessary implication. In the instant case, there was no such conferment of power of review by the Act on the Council.

(ii) A distinction must be drawn between the inherent powers of Courts or Tribunals, on the one hand, and those of quasi-judicial authorities on the other. While Tribunals and Courts have inherent powers, quasi-judicial authorities have only those powers which are conferred by statute. As such, they do not have any power to review unless specifically conferred by statute. Council possessed no power of review.”

THE QUESTIONS REMAINED UNANSWERED

We Chartered Accountants as a person, as a state, and as a community, have too much promise, too much potential, and too much at stake to go any other way than forward. We are too strong in our hearts, too innovative in our minds, and too firm in our beliefs to retreat from our goals.

MOVEMENT AT TAXGURU DIES WITH A SAD NOTE

Taxguru was on lead taking the initiative and carrying out the various articles, comments over this menace to the Chartered Accountant fraternity. With the taking back ceremony all hopes for the betterment of profession dies. Here are many of the issues in the past published by the TAXGURU on tenders.

CA AMRESH VASHISHT, Meerut