TaxTMI 
TaxTMI 
2021 (3) TMI 274
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....hartered Accountants Act, 1949 and the petitioner was held guilty under clause (2) of Part IV of 1st Schedule and clause (4) and (7) of Part 1 of 2nd Schedule of the Chartered Accountants Act, 1949. (2) A preliminary objection has been taken by the respondents with respect to maintainability of the writ petition before the High Court of M.P. Bench at Gwalior on the ground of territorial jurisdiction. It is alleged that the order impugned is being passed at New Delhi. The entire proceedings have taken place in the New Delhi, therefore, the petition should have been preferred at High Court Judicature at New Delhi. It is submitted that the petition is not maintainable owing to want of jurisdiction. The second objection is with respect to maintainability of the petition on the ground of alternative remedy. It is argued that the petitioner is having an alternative, efficacious remedy of filing an appeal against the order impugned under section 22G of the Chartered Accountant Act, 1949, which is headed by a Retired Judge of the High Court. Without availing the alternative, efficacious remedy available to him the petition has directly before this Court is not maintainable. He has relied ....
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....orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition." (4). Recently, the Hon'ble Supreme Court in the case of Shanti Devi alias Shanti Mishra Vs. Union of India and others, (2020) 10 SCC 766 had an occasion to consider the aspect of territorial jurisdiction and cause of action and has held as under: "17. Mulla on the Code of Civil Procedure while commenting on Section 20 of the Civil Procedure Code defined cause of action in following words:- "The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of a....
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....stablish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction. (6) Considering the several judgments passed by the Hon'ble Supreme Court on earlier occasion and recently in the case of Shanti Devi (supra) the Hon'ble Supreme Court has quashed the order passed by the High Court dismissing the petition on the ground of territorial jurisdiction and has held that even a part of cause of action gave jurisdiction to Court to entertain the petition under Article 226 of the Constitution of India. In the present case the petitioner is resident of Gwalior. The petitioner and his Company is situated at Gwalior. Complainant is resident of Gwalior. All the work which was carried out for which complaint was made, was done at Gwalior. The complaint was made from Gwalior and part of cause of action has arisen at Gwalior. In such circumstances and following the judgments passed by the Hon'ble Supreme Court in the aforesaid cases, this Court is of the considered opinion that this Court is having territorial jurisdiction under Article 226 of the Constitution of India to entertain the issue. (7) Next objectio....
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....le of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmed Vs. Municipal Board, Kairana, AIR 1950 SC 163 laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy esisted, it would be a sound exercise of discreation to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh AIR 1958 SC 86, as under : "But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a ....
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....nder Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal"." (8) The Constitutional Bench in Mohinder Singh Gill Vs. Chief Election Commr., (1978) 1 SCC 405 held that natural justice is now a brooding omnipresence concept although varying in its play and that the "exceptions" to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. The rule of audi alteram partem is the justice of law, without of course making law lifeless, absurd, stultifying, self-defeating or plainly contr....
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....ck (Law Dictionary 4th Edn.) at p.311. "Ordinarily, pertaining or appropriate to a member of a civitas of free political community; natural or proper to a citizen. Also, relating to the community, or to the policy and government of the citizens and subjects of a state. The word is derived from the Latin civilise, a citizen... In law, it has various significations. Civil Rights' are such as belong to every citizen of the State or country, or, in a wider sense, to all its inhabitants, and are not connected with the organisation or administration of government. They include the rights of property, marriage protection by the laws, freedom of contract, trial by jury, etc.... Or, as otherwise defined, civil rights are rights appertaining to a person in virtue of his citizenship in a State or community. Rights capable of being enforced or redressed in a civil action. Also a term applied to certain rights secured to citizens of the United States by the thirteenth and fourteenth amendments to the Constitution, and by various act of Congress made in pursuance thereof. (p. 1487, Blacks Legal Dictionary)" The petition can directly be entertained owing to certain limitations. The case....
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....at the act of Amit Shrivastava being working as Director is indicating some possible collusion of the respondent with the Director. Further in para 10 the disciplinary committee has observed that the application is being received on 31st October, 2014 from the complainant requesting for withdrawal of her complaint. The Committee is of the opinion that these are again points towards the indulgence of the Respondent in trying to extricate himself from the case through undesirable means. Moreover, mentioning of the civil suit and various complaints filed against the complainant does not absolve the misconduct on the part of the respondent. It was also observed that later-on complainant for the reason best known to him withdrew the complaint through the affidavit as mentioned above dated 3.7.2019 received from E-mail ID of Sanjeev Kumar Kansal (husband of complainant) but still kept on making request for the adjournments also subsequently, but the disciplinary committee has not permitted to withdraw the complaint and on his own has proceeded with the matter. Once the complainant itself was not cross-examined before the disciplinary committee and thereafter no opportunity to lead defenc....
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....d out that the petitioner's witness Amit Shrivastava appeared before the disciplinary committee on 15.5.2019 and was examined at length by the counsel for the petitioner. Thereafter the said witness was even cross-examined by the complainant as is evident from the notes of hearing dated 15.5.2019. (12) After conclusion of the cross-examination time was sought which was also granted to the petitioner, but despite of opportunity being granted to him he has adopted the dilatory tactics of seeking adjournments on one ground or the other. Ample time was provided to him, but he has not chosen to conclude the arguments. In such circumstances the authority was not having any other option except to proceed in the matter and accordingly on the basis of material available on record the authorities have proceeded in the matter. It is further pointed out that the petitioner's wife has been shown as Chairman cum Managing Director and Mr. Amit Shrivastava as Director of the Company for Financial Year 2008-2009. The equity shares allotted to his wife are being shown as 33.33%, whereas the annual return signed by the petitioner himself that for the financial year 2008-09 showed his wife....
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....roceedings. The order impugned reflects that same is being based on mere considering the possibility of collusion of the respondent with the Director of the Company. There is no substantial material available on record which have been considered by the disciplinary committee who arrived at conclusion that the wife of the respondent was having substantial interest in the company. In para 7 of the impugned order it is held by the disciplinary committee that "Although, the Respondent wife's holding does not fall within the clear cut definition of substantial interest, yet looking into the supporting documents which shows that she has been authenticating the Financial Statements of the Company for the Financial Year 2009-2010, signing annual return, holding more than 20% shares in the Company seem to suggest that she had substantial interest in the Company." In para 8 the disciplinary committee has arrived at the conclusion that there is some possible collusion of the Respondent with the Director of the Company. He is being guilty by the disciplinary committee on the basis of material available on record. Further in para 11 of the impugned order shows that despite an application fo....