TaxTMI 
TaxTMI 
2018 (8) TMI 705
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....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:- "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, ....
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....l 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 c....
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....rded 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 ....
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....s 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 ....
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....ous 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 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 ....
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....ile 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....