TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 206
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....eporting Authority ("NFRA") is the Respondent herein. 3. The Impugned Order dated 19.08.2024 pertains to the statutory audit of M/s Coffee Day Enterprises Ltd. (CDEL) for the financial year 2018-19, conducted by M/s BSR & Associates LLP, with CA Aravind Maiya as the Engagement Partner (EP) and CA Amit Somani as the Engagement Quality Control Reviewer (EQCR). 4. On 17.01.2024, the NFRA issued a Show Cause Notice (SCN) alleging deficiencies in the EQCR's role. It has been brought out that a comprehensive reply was filed by the Appellant on 29.03.2024, addressing each allegation and detailing compliance with SA 220 and SQC 1. A personal hearing was conducted on 31.05.2024, where, with legal counsel, the Appellant clarified the distinct roles of the EP and EQCR, emphasizing adherence to applicable standards. Written submissions by the Appellant dated 14.06.2024 reiterated these points, collectively forming the Responses. 5. It has been brought to our notice that the Impugned Order dated 19.08.2024 charged the Appellant i.e. CA Amit Somani with professional misconduct under Clause 7, Part I of the Second Schedule of the Chartered Accountants Act, 1949, for alleged failure t....
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....lied) 9. Thus, we are duty bound to examine and satisfy ourselves that sufficient reasons existed for condoning such huge refiling delay of 147 days. We shall deal this in the following discussions. 10. We note that Hon'ble Registrar of this Appellate Tribunal examined the issue of delay in refiling and recorded its detailed order dated 27.02.2025 which reads as under: - "This is an application to extend the time granted for curing the defects. The facts of the case are that the Appellant e-filed the Memo of Appeal on 18.09.2024. The Office after scrutiny of the Memo of Appeal on 20.09.2024, intimated the defects to the Appellant on the same day. The Appellant re-filed the Memo of Appeal on 21.02.2025. it is stated in the Interlocutory Application (IA) that the registry raised defects on several occasions, which were cured by the Applicant on every occasion. Also, the counsel for the Appellant was informed that some defects were marked on 16.01.2025, while no intimation of the defects was notified to the Appellant or his counsel, the Applicant expeditiously cleared the defects on 19.02.2025. Hence, there is delay of 147 days in refiling the IA, so the sa....
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....PDF of the application should be removed from the pdf of the appeal and uploaded separately on the portal, fees should be paid accordingly . 6. Fill in the blank page no. 13,57 . 7. Page no. 15, affidavit, para no. 1 is defective . 8. page no. 175 should be upload in landscape mode . 9. Remove the old annexures pages no. 182-183,185-186,189 .... etc onwards, . 10. Vakalathnama, caveat report undertaking, proof of service, proof fo payment, etc are, mentioned in the master index but not uploaded . 11. Same PDF is uploaded 3 time extra, remove it. 12. Upload the receipt of payment according to the uploaded pdf. (Upload payment of appeal and Application accordingly.) And Submit the undertaking of the Bharat kosh payment with Reference number etc. which did not use other appeals and applications . 13. Note: Please check and ensure that all details and all documents are uploaded with correct indexing and ensure that the pagination is properly done in all the volumes with Original COLORED SCAN documents, Signatures, notary, stamps, etc. It's mandatory . 14. Upload I.A for delay in refiling separately, da....
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....et dated 21.11.2024: Defects Sheet F.No 21.11.2024/NCLAT/UR/10535 National Company Law Appellate Tribunal New Delhi Company Appeal(AT) No . of 2024 e-filing number : 9910110/10535/2024 AMIT SOMANI Appellant / Petitioner And National Financial Reporting Authority Respondent The noticed defects are as under :- 1. Pre-deposit 10% of the penalty amount is not deposited i.e., Rs 2.5 lakh. 2. The index, memo of the party, declaration-verification, and memorandum of appeal are not signed. 3. Bookmarking is defective. 4. Pagination is not marked at point no. 18 etc onward in the master index. 5. PDF of the application should be removed from the pdf of the appeal. 6. Fill in the blank page no. 13,57. 7. Page no. 15, affidavit, para no. 1 is defective. 8. page no. 175 should be upload in landscape mode. 9. Remove the old annexures pages no. 182-183,185-186,189 .... etc onwards,. 10. Caveat report undertaking, proof of service, proof of payment, etc are, mentioned in the master index but not uploaded.. 11. Upload the receipt of payment according to the u....
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....her appeals and applications. 12. Note: Please check and ensure that all details and all documents are uploaded with correct indexing and ensure that the pagination is properly done in all the volumes with Original COLORED SCAN documents, Signatures, notary, stamps, etc. It's mandatory . 13. Upload I.A for delay in refiling separately, days should be calculated based on first-time defects marked on the next date . Note: If the User/Appellant/Authorised Representative feel any difficulty in removing defects or unable to cure any defects, they can get assistance from registry as required. Date of scrutiny: 02.12.2024 Date of intimation to the appellant: 02.12.2024 Mode of intimation to the appellant: 9999291467, [email protected] Note: All 13 defect continues. iv.The defect sheet dated 10.12.2024: Defects Sheet F.No 10.12.2024/NCLAT/UR/10535 National Company Law Appellate Tribunal New Delhi Company Appeal(AT) No of 2024 e-filing number : 9910110/10535/2024 AMIT SOMANI Appellant / Petitioner And National Financial Reporting Authority Respondent The noticed defects are as u....
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....erification, and memorandum of appeal are not signed .. 3. Bookmarking is defective .. 4. Pagination is not marked at point no. 18 etc onward in the master index .. 5. PDF of the application should be removed from the pdf of the appeal .. 6. Fill in the blank page no.13,57 .. 7. Page no. 15, affidavit, para no. 1 is defective .. 8. page no. 175 should be upload in landscape mode .. 9. Remove the old annexures pages no.182-183,185-186,189 ....... etc onwards, 10. Caveat report undertaking, proof of service, proof fo payment, etc are, mentioned in the master index but not uploaded .. 11. Upload the receipt of payment according to the uploaded pdf. (Upload payment of appeal and Application accordingly.) And Submit the undertaking of the Bharat kosh payment with Reference number etc. which did not use other appeals and applications .. 12. Note: Please check and ensure that all details and all documents are uploaded with correct indexing and ensure that the pagination is properly done in all the volumes with Original COLORED SCAN documents, Signatures, notary, stamps, etc. It's mandatory .. ....
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....pellant/Authorised Representative feel any difficulty in removing defects or unable to cure any defects, they can get assistance from registry as required. Date of scrutiny: 06.01.2025 Date of intimation to the appellant: 06.01.2025 Mode of intimation to the appellant: 9999291467, [email protected] Note: All 13 defect continues. 14. The Appellant has also submitted that he was not notified about any other existing defects and upon inquiring from the registry, the counsel for the Appellant was informed that the defects were already marked on 16.01.2025. However, it is to be noted that proper intimation via email and on mobile no. was sent to the Appellant regarding the defects on 16.01.2025 itself, which can be seen as under: - Defects Sheet F.No 16.01.2025/NCLAT/UR/10535 National Company Law Appellate Tribunal New Delhi Company Appeal(AT) No of 2024 e-filing number : 9910110/10535/2024 AMIT SOMANI Appellant / Petitioner And National Financial Reporting Authority Respondent The noticed defects are as under :- 1. Pre-deposit 10% of the penalty amount is not deposited i.e., Rs 2.5 lakh .. ....
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....lakh .. 2. Note: Please check and ensure that all details and all documents are uploaded with correct indexing and ensure that the pagination is properly done in all the volumes with Original COLORED SCAN documents, Signatures, notary, stamps, etc. It's mandatory .. 3. Upload I.A for delay in refiling separately, days should be calculated based on first-time defects marked on the next date .. Note: If the User/Appellant/Authorised Representative feel any difficulty in removing defects or unable to cure any defects, they can get assistance from registry as required. Date of scrutiny: 20.02.2025 Date of intimation to the appellant: 20.02.2025 Mode of intimation to the appellant: 9999291467, [email protected] Name of person intimated: Amit Somani Dealing Head: Jyoti Kumari 16. We observe that even after re-filing again by the appellant on 20.02.2025, 2 defects still remained uncured from the 14 abovementioned defects, which were notified to the Appellant on 21.02.2025. the same can be observed below: - Defects Sheet F.No 21.02.2025/NCLAT/UR/10535 National Company Law Appellate Tribunal N....
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.... the defects were already marked on 16.01.2025. While no intimation of the defects was notified to the Appellant or his counsel, the Applicant expeditiously cleared the defects on 19.02.2025. 8. It is humbly submitted that the delay in re-filing is due to factors and circumstances beyond the reasonable control of the Appellant and his counsel. While the counsel for the Appellant cleared all defects marked by the registry within the prescribed period of 7 days of marking of each defect on every occasion, there is an inevitable delay of 147 days in refiling the present Appeal. 9. It is submitted that the circumstances causing the aforesaid delay are bona fide and genuine. The delay in re-filing the present Appeal is not deliberate and deserves to be condoned in the interest of justice. It is therefore, prayed that this Hon'ble Tribunal be pleased to condone the delay of 147 days in re-filing the Appeal. 10. It is submitted that irreparable harm would be caused to the Appellant if the delay in filing of the present Appeal is not condoned, whereas no prejudice would be caused to the Respondents. 11. The present Application has been filed bona-fid....
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.... not indicate that if the defects are not removed within seven days, the re-presentation of the appeal after removal of defects beyond 7 days shall be treated as fresh appeal. The first presentation of the appeal is the date which is to be reckoned for the purpose of computation of limitation in filing of appeal and the re-presentation of the appeal has no bearing on the question of computation of limitation. The judgments of this Tribunal in "Mr. Jitendra Virmani v. MRO-TEK Realty Ltd." and "Arul Muthu Kumaara Samy v. Register of Companies" holding that when the defects in the appeal is cured after 7 days and the appeal is represented, the appeal shall be treated as a fresh appeal does not lay down correct law. Learned counsel for the Appellant further submits that filing of appeal and re-presentation of the appeal with the Registry are two different concepts which have two different consequences. Under the Code or Rules, no limitation has been provided for re-presentation (refiling). The period of limitation provided under Section 61 of the Code and Section 421 of the Companies Act, 2013 are applicable with regard to filing of the appeal and the said limitation cannot be applied ....
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....te a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order. (3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed. (5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or authorised representative. (6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal." 9. Rule 26 deals with 'Endorsement and Scrutiny of Petition or Appeal or Document', which rule has come up for consideration and interpretation in the present appeal. Rule 26 is as follows: "26. Endorsement and scrutiny of petition or appeal or document.-(1) The person in charge of the filing-counter shall immediately on receipt of appeal or do....
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....ate on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against (5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal." 27. The limitation which has been provided under Section 61(2) and Section 421 is the limitation for filing an appeal. The Rules, neither the Code nor the Companies Act, 2013 lay down any limitation for representation/refiling of the appeal. Rule 26 of NCLAT Rules, 2016, which govern the r....
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....ient justification. The reference is answered accordingly." (Emphasis Supplied) 24. From above, we note that the larger bench has held that no limitation prescribed for refiling of appeal and party who is exercising its right to file the statutory appeal in time has not to be shut out on procedure or technical defects however, they should be justifiable cause for delay. The larger bench also held that representation of appeal after expire of period of 7 days or after extended period was not to be a fresh filing and shall only be refiling/ representation. 25. It is important to note that the larger bench only held that given in refiling which is more the period of limitation prescribed for filing appeal under Section 61 of the Code or Section 421 of the Companies Act, 2013 shall not governed the period taken in appeal for removal of the defects in refiling/ representation, the same can be condoned on "sufficient justification". Hence, although there should not be any upper limit on days prescribed for refiling, however, the applicant is required to be responsible and careful and has to submit the reasons for delay in refiling beyond his control. In the present case, we do n....
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.... or appeal or document (2) If, on scrutiny, the appeal or document is found to be defective, such document shall, after notice to the party, be returned for compliance and if there is a failure to comply within seven days from the date of return, the same shall be placed before the Registrar who may pass appropriate orders. (3) The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance. (4) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the appeal or pleading or document." 14. It is contended that Rule 14 of the NCLAT Rules, 2016 which deals with Power to exempt, provides a mandate to this Hon'ble Appellate Authority to exempt compliance with any requirement of the rules prescribed only in situations where sufficient cause has been shown, in the interest of justice. 15. To condone the delay, the Appellan....