ITAT held in its order that ICAI CPE programmes might have failed to achieve the desired objectives with some of the Chartered Accountants. It further said that it is hightime that the ICAI should take note of these practicalities and should take corrective steps in order to maintain/restore the high standards and quality expected from a C.A. professional.
In the instant case, we have noticed that the C.A. firm cited above has given an affidavit to the effect that it has given advice to the assessee to wait for the outcome of the appeal filed before the Tribunal and then to file rectification petitions. In paragraph 6 of the affidavit, the C.A. firm has stated that they have advised the assessee herein that he could file a rectification or review application before the AO, once the issue is settled by the ITAT.
We notice that the expressions “rectification” and “review” appear to have been used in the affidavit with the understanding that they are synonyms to each other. Under sec. 154 of the Act, mistakes apparent from record alone can be rectified and the question of “review” does not come within the ambit of that section. Further, we have already noticed that the question of filing rectification petition for assessment year 1996-97 does not arise at all, since the AO had actually allowed the deduction u/s 80-O of the Act in that year and it is the Ld CIT(A) who had withdrawn the said deduction. Thus, it is seen that the advice claimed to have been given by the C.A firm has been given without analysing the facts prevailing in the instant case and also without clear understanding of the provisions of the Act and their implications. We have also noticed that a C.A firm could not give such kind of advice, since it cannot forecast the outcome of an appeal filed before the Tribunal. We have already noticed that the CPE programs have been designed by ICAI with the noble objective of enlightening the Chartered Accountants with current topics, current developments and such programs are also aimed to continuous updating or refreshing of the knowledge of Chartered Accountants. The advice claimed to have been given by M/s Rajesh Rajeev Associates, Chartered Accountants, if considered to have been really given, would create doubt about the efficacy of the CPE programmes, since such kind of advices is not expected from a Professional. Further these kind of advices claimed to have been given by a C.A firm clearly give signals that the CPE programmes might have failed to achieve the desired objectives with some of the Chartered Accountants. It is hightime that the ICAI should take note of these practicalities and should take corrective steps in order to maintain/restore the high standards and quality expected from a C.A. professional. We have also expressed the view that the above said C.A firm might have given the affidavit only to accommodate the assessee, which conduct is also not expected from a Professional. If it is considered that the C.A firm has colluded with the assessee for giving such kind of affidavit, then it only warrants disciplinary action against them. Even, if it is considered that the said C.A. firm has really given such advices, then also it may require disciplinary action against them for giving such kind of advices, without proper verification of facts and without proper consideration of law. In our view, strict actions and fast disposal of disciplinary proceedings would not only instill discipline among the C.A fraternity, but also help curtail these kind of undesired practices adopted by some of the Chartered Accountants
Since the assessee as well as the above said C.A. firm has given affidavits to substantiate their explanation, we feel it appropriate to refer to the decision rendered by Hon’ble Allahabad High Court in the case of Sri Krishna Vs. CIT (142 ITR 618)(All) with regard to the affidavits furnished in a proceeding. In the above said case, the assessee therein filed an affidavit stating that he did not receive demand notices from the Income tax department. However, since the relevant records were not available with the department, the Income tax officer was not able to show that the demand notices were served upon the assessee. The Hon’ble High Court examined the sequence of events and came to the conclusion that the affidavit given by the assessee could not relied upon. The relevant observations made by Hon’ble Allahabad High Court in the above cited case are extracted below, for the sake of convenience:-
“The fact that the Department has not been able to make a definite assertion that the notices of demand were served on the assessee cannot help the assessee or the petitioners in this case. The failure of the respondents to make a positive assertion is not sufficient in view of the peculiar facts of the instant case, to lead to the conclusion that the assertion made by the assessee is true and worthy of reliance. It is neither a rule of prudence nor a rule of law that the statements made in an affidavit which remains uncontroverted, must invariably be accepted as true and reliable. Ordinarily, in the absence of denial, the statements may be accepted as true but if there are circumstances which suggest that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability. In view of the special facts and circumstances of this case, we are not inclined to accept the statement of the Karta made on oath in the affidavit that the notices of demand in respect of the assessment years in question were not served on him before the commencement of recovery proceedings. As said earlier, this statement is clearly an afterthought and was made when the deponent became sure that the Department is handicapped by the non-availability of the relevant records. The normal and natural course for the ITO is to send the assessment order along with notice of demand, and tender for deposit of the amount due in a treasury or bank, to the assessee. This course must have been followed in the instant case as well. There is no reason for us to think that the income-tax office would have departed from this well-known and well-established practice of the Department when an order of assessment was made and it was found that certain amount of income-tax was due from the assessee.”
In the instant case, we have observed earlier that a C.A. firm could not have given such kind of advices. Hence, we are constrained to reject the affidavit given by the C.A firm. The affidavit given by the assessee is also liable to be rejected since it gains strength only from the affidavit given by the C.A. firm.
In the instant cases, the discussions made by us in the earlier paragraphs would show that the assessee has failed to show that there was sufficient cause for the substantial delay occurred in filing these appeals. we have particularly noticed that
(a) an experienced C.A firm could not have given such kind of wrong/ absurd advice on the facts prevailing in the instant case.
(b) even if it is considered that his C.A firm has given such an advice, it is not believable that a prudent man would not have cross verified the same or applied his mind over it.
(c) the conduct of the assessee is beyond the comprehension of human conduct and probabilities.
(d) the assessee has failed to show the reasons for entire period of delay, i.e., no reason has been for the delay that occurred in between periods.
In view of the discussions made supra, we are of the view that no credence could be given to the letter and affidavit furnished by the Chartered Accountant and hence they will not come to the help of the assessee. We have already held that the affidavit given by the assessee is also liable to be rejected. Under the facts and circumstances discussed supra, we are constrained to reject the request put forth by the assessee to condone the delay in filing these two appeals. Accordingly we are not inclined to admit both the appeals filed by the assessee. We order accordingly.