Durga Prasad Sarda Vs Board of Discipline of ICAI ((Appellate Authority)
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.
Consequently, when the Appellant has himself admitted charging commission at every stage of proceedings, there is no scope to challenge the findings and the Order passed by the Board of Discipline.
In view of the above, we are of the considered view that the Appellant was undoubtedly involved in arranging bogus bills through dummy concerns and charged commission for the same and therefore he was rightly held guilty under the aforementioned clauses for committing the Professional and Other Misconduct by the Board of Discipline of the Institute of Chartered Accountants of India.
Full Text of the Appellate Authority Order is as follows:-
1. This appeal has been filed by the Appellant CA. Durga Prasad Sarda (M. No. 43035) before this Authority against the Order dated 18th August, 2017 (Impugned Order) passed by the Board of Discipline of the Institute of Chartered Accountants of India under Section 21A (3) of the Chartered Accountants Act, 1949 read with Rule 15 of the Chartered Accountants (Procedure of 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:-
PART-I: Professional misconduct in relation to chartered accountants in practice
A chartered accountant in practice shall be deemed to be guilty of Professiona l 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: Other misconduct in relation to members of the Institute generally
A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if he –
(2) in the opinion of the Council, brings disrepute to the profession or the
Institute as a result of his action whether or not related to his professiona l work. ”
2. The facts of the present appeal as narrated in the Report dated 19thJanuary, 2017 of the Board of Discipline are that Shri SSSB Ray, Nagpur has filed a complaint in Form „I‟ dated 27thMay, 2013 against the Appellant. The brief of the charges alleged by the complainant in his complaint are as under:-
i. The Respondent, the appellant herein, had arranged accounting bills raised by 16 parties amounting to Rs. 14.09 Crores to M/s Sunil Hi-Tech Engg. Ltd (SHEL).The said entries were not genuine.
ii. The Respondent, the appellant herein, had charged commission @0.25% to 1% of the transactions for arranging accounting entries.
iii. The Respondent, the appellant herein, had been involved in arranging bogus bills, accommodation entries and circular transactions for trading in coal through bank LC limits for various other parties.
3. The aforesaid complaint was taken up for consideration by the Director (Discipline) of the Institute of Chartered Accountants of India, who vide Order dated 10thOctober, 2015 found the Appellant Prima Facie Guilty of the misconduct falling within the meaning of the aforesaid Clauses of the Chartered Accountants Act , 1949.
4. Director (Discipline) placed the complaint, written statements and the „Prima-Facie Opinion‟ (PFO) along-with all other documents on record before the Board of Discipline of the Institute of Chartered Accountants of India for consideration. Accordingly, on perusal of the documents on record viz. the complaint, the written statement of the Respondent, Appellant herein, the Prima Facie Opinion of the Director (Discipline), and after hearing the submissions of the parties, the Board of Discipline gave its findings as under:-
4.1 The Board noted that the charges on which the Respondent has been held Prima Facie guilty are as under:-
a) Arranging accounting bills raised by 16 parties amounting to Rs.14.09 crores to M/s Sunil Hi-Tech Engg. Ltd.
b) Charging commission @0.25% to 1% of the transactions for arranging accounting entries.
c) Involvement in arranging 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 charged @0.75% of the bill amount.”
4.4 The Board also perused the Order No. CIT (A)-3/517/2011-12 dated 21st July,2016 passed by the CIT (Appeals)-3, Nagpur in the Income Tax Matter of the Respondent, wherein it is stated as under:
“21. On a careful consideration, it is seen that the AO has adduced sufficient circumstantial evidences showing that the assesse was arranging bogus sub-contract bills as well as other accommodation entries for his clients mainly Gupta Coal Group, Sunil Hitech Group and Linkson Group. On the basis of documents seized during search and the statements of the assesse as well as his employees, the AO has observed that the assesse, Shri D.P. Sarda had floated various concerns in the name of his relatives and persons of very low or no means. For example, concerns were floated in the names of employees like drivers (Baban Yadav, servants (Ravi Yadav), petty shop keepers‟ workers, etc. or the relatives. These persons being of no-means agreed to lend their names for small amounts of Rs.500/- to Rs.10,000/-. For example, M/s Ajay Trade Link is the proprietary concern of Shri Ajay Yadav (a relative of assesses‟s servant, Shri Ravi Yadav), M/s S.N. Coals and Coke is a concern of Ravi Yadav (a servant of the assessee) and P.R. Traders is a concern of Rajesh Dass, who is an associate of the assessee. Signature of these people was obtained on blank documents to open Bank accounts, and to obtain PAN for these concerns. Signatures of these people were obtained on blank cheque books and Income Tax Returns forms. Moneys were circulated from one Bank Accounts to another for the purposes of providing accommodation entries to various parties like Gupta Coal Group, using the blank signed cheques of different persons. The bills were issued by the assessee to his „clients‟ from the concerns floated by Shri D.P. Sarda to facilitate booking of expenses (as in case of Sunil Hitech Ltd) and arranging L.C. limits on these bills (as in Gupta Coal Group) it is seen from the seized document that commission was charged by the assessee for arranging these transactions. The percentage of commission was dependent on the nature of transactions.
22. In the statement recorded u/s 31 of the Income Tax Act, dated 8th October, 2009, the assessee has admitted that he has arranged bogus bills and accommodation entries by using the names of his employees and friends. 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).
Q3. Bills for sub-contract work for SHEL has also been found to be raised in the names of Smt. Sandhya Dass, Smt. Dudha Nawal & M/s. Raj Industries, prop. Shri Rajkumar Sarda. Kindly confirm whether bills were prepared in the names of these three persons / concerns in the same manner as was described by you in your reply to questions No. 2 in respect of bills raised in the names of the 12 persons mentioned therein?
Ans. Yes, bills were prepared in the names of Smt. Sandhya DassSmt. Dudha Nawal & M/s. Raj Industries in the same manner & blank signed cheques were also obtained from there three persons and handed over to Shri R. S. Tiwari, GM (Finance), SHEL in the same manner.”
23. It is seen that Shri D.P. Sarda has admitted that bills for sub-contract work done for Sunil Hitech Engineers Ltd (SHEL) were raised in the names o f these 12 persons mentioned above. All these bills were made on his personal computer in his office. Mr. Radhey Shyam Tiwari, G.M. (Finance), SHEL had requested the assessee to arrange for bills, accordingly the bills were prepared and signature of above persons in the respective bills were obtained by him.
24. The statements of the 12 persons mentioned above were recorded during the assessment proceedings by the AO each one of them has confirmed that the assessee had used these persons for his various activities. These persons were barely educated and were in poor financial condition and therefore could easily come under the control and influence of the assessee. These persons have admitted to have signed blank documents, cheque-books, etc. in return for small amounts of money from the assessee. These persons did not have any knowledge of the transactions which the assessee was performing in their names by obtaining their signatures on the blank documents and cheque-books. The assessee had operated bank accounts of these persons to provide accommodation entries to various parties and the assess has earned commission in the process. The rate of commission adopted by the AO is 1.4% of the amount of transactions referred in the assessment order. The AO has based on the rate of commission on the seized item No. B/3 in which on page 77, the rates are stated at 1.335% to 1.41% on the transactions. The AO has listed the transactions of search accommodation entries in the nature of bogus expenses, share premium, circular transactions 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 21stJuly, 2016 passed by the CIT (Appeals)-3, Nagpur in the Income Tax Matter of the Respondent, the Appellant herein, wherein the said CIT (A) has reviewed all statements recorded, documents seized and the statement of the Appellant before the Income Tax and found the Appellant involved in arranging the bogus bills through bogus concerns promoted by him and charged commission for that.
6. Accordingly, the Board of Discipline found the Appellant guilty of professional and other misconduct falling within the meaning of the aforesaid clauses of the Chartered Accountants Act, 1949, and subsequently awarded the punishment as detailed supra.
7. During the proceedings of the present Appeal before us, the Appellant was present in person, where he reiterated the same submissions as made by him before the Board of Discipline and have taken various grounds of Appeal which are being disposed of as below.
8. The first ground of Appeal taken by him is about not getting adequate opportunity of hearing before the Board of Discipline. The Appellant submitted that he was not given adjournment and proper time to submit evidence and defend his case. We asked the Appellant that whatever opportunity was not given to him by the Board of Discipline, he can file any new evidence and raise any argument now before us. However, in response, no new evidence or argument was brought by the Appellant before us. In fact, we have noted that the Board of Discipline has also in its Order has recorded that the Appellant pleaded that he has nothing further to submit. Accordingly, we heard the Appellant at length and afforded him full opportunity to produce any new evidence but nothing was brought on record before us, therefore, this ground stands disposed of, as being without any merit.9.
9. Other grounds of Appeal raised by the Appellant are about placing the reliance by the Board of Discipline on the evidence including the statement of Appellant before Income Tax Department. The Appellant submitted that the Board of Discipline relied upon the statements of various persons recorded before Income Tax Department without providing any opportunity to the Appellant to cross examine them. The Appellant accordingly vehemently argued that the Board of Discipline relied on various documents without having those documents or without examining veracity thereof. He also submitted that his statement before the Income Tax Department was taken under coercion.
10. The Appellant, also raised a new plea vide written reply filed on 18thJuly, 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 statement recorded on 10thJuly, 2014 is relevant to note, where he is admitting as hereunder:
“On page No. 62, names of the contractors who issued bills to SHEL are mentioned along-with the details of amount received by them through cheques against bills raised. On the bottom of Pg. 62 and on Pg. 61 accounts were prepared to return the cash after deducting the commission. These calculations pertain to amount withdrawn in cash from bank A/c in the names of the mentioned contractors and returned to the promoters of SHEL. Commission in respect of the transactions described above and earlier during my statement recorded u/s 131 on 08.10.09 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 Mahendra Bokade and Ganesh Prasad Shukla commission was charged @0.75% of the bill amount. These calculations are on Pg. No. 61 & 62 are in my own handwriting.“
14. The said statement remained uncontroverted till now. The learned CIT (A) upheld the addition of said commission in the hands of the Appellant. No order of Tribunal was produced before us to reverse the same but it was said that the appeal is pending. Even copy of appeal was not filed before us. It is also relevant to record here that the Appellant stated that the statement recorded by the Income Tax Department was under coercion. However, when we inquired from him that the statement was recorded on 23rd October, 2009 and for the last Nine years why he has not retracted or disputed the same, for which, no answer at all was given by the Appellant.
15. Additionally, we have also observed that the complainant in his complaint vide
Para No. (4) had made allegation as under:
“4. Shri Durga Prasad Sarda, CA. has charged commission @ 0.25% to 1% for arranging the accommodation bills. This fact was accepted by Shri D. P. Sarda in his statement on oath recorded u/s 132(4) of the Income Tax Act, 1961, on 23rd October, 2009 “
While replying the same vide his written statement dated 26th May, 2014 in respect of the said Para No. (4), the Appellant has categorically admitted as under that:-
“4. Yes, it is a fact already admitted on oath.”
16. Besides above, we have also noted that the Appellant has even accepted his guilt during the proceedings while awarding punishment in this matter before the Board of Discipline, 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 every stage of proceedings, there is no scope to challenge the findings and the Order passed by the Board of Discipline.
19. In view of the above, we are of the considered view that the Appellant was undoubtedly involved in arranging bogus bills through dummy concerns and charged commission for the same and therefore he was rightly held guilty under the aforementioned clauses for committing the Professional and Other Misconduct by the Board of Discipline of the Institute of Chartered Accountants of India.
20. Thus, we find no merit in the present Appeal and the same is hereby dismissed. Further, on the careful perusal and consideration of the materials on record, we do not find any ground to reduce the punishment awarded to the Appellant as well.
21. Resultantly, the present Appeal is disposed of by sustaining the Order dated 18thAugust, 2017 passed by the Board of Discipline. Stay orders, if any, are vacated. No order as to cost.