Delhi High Court

Institute Of Chartered ... vs B. L. Khanna on 5 September, 2000

Equivalent citations: 2001 113 TAXMAN 170 Delhi

Author: Pasayat

JUDGMENT

Pasayat, C.J

This is a reference under section 21(5) of the Chartered Accountants Act, 1949 Income Tax Act by the Institute of Chartered Accountants of India (hereinafter referred to as `the Institute'). Factual position is almost undisputed and is as follows :

2. B.L. Khanna (the respondent') as a Chartered Accountant had certified an application by Aero Traders Private Limited in accordance with the requirements of Import and Export Policy certifying the FOB value of exports at Rs. 4,44,77,996 which was wrong. The Chief Controller of Imports and Exports gave information to the Institute that figures certified by the respondent in the report were not correct. The respondent certified the FOB value of exports at Rs. 4,44,77,996 whereas the correct figure was Rs. 4,14,69,925. On getting information from the Chief Controller of Imports and Exports the matter was referred to the Disciplinary Committee. Said Committee concluded that the respondent was guilty of professional misconduct within the meaning of section 21, read with section 22 of the Act and clauses (6) and (7) of Part-I of Second Schedule to the Act. When the matter came up before the Council, benefit of doubt was given in respect of charge under clause (6) of Part-1 of Second Schedule. However, it was held that the respondent had not exercised due care and skill which he should have done while discharging his professional duties and should have indicated the correct figure. The Council recommended reprimand.

3. The learned counsel for the Institute submitted that care and caution which the respondent was required to exercise while discharging his professional duties was not done and, therefore, he has been rightly found to have misconducted himself and committed professional misconduct.

4. The learned counsel for the respondent, on the other hand, submitted that the moment the respondent found that there was a typographical error, concerned party was immediately informed. It was pointed out that instead of FOB value CIF value was indicated. This is a bona fide mistake and there is no dispute that the FOB value and the CIF value as indicated by the respondent are not in order.

5. Sections 21, 22 of the Act, and clauses (6) and (7) of Part 1 of Second Schedule to the Act read as follows :

"21. Procedure in inquiries relating to misconduct of members of Institute-(1) Where on receipt of information by, or of a complaint made to it, the Council is prima facie of opinion that any member of the Institute has been guilty of any professional or other misconduct, the Council shall refer the case to the Disciplinary Committee and the Disciplinary Committee shall thereupon hold such inquiry and in such manner as may be prescribed, and shall report the result of its inquiry to the Council.

(2) If on receipt of such report the Council finds that the member of the Institute is not guilty of any professional or other misconduct, it shall record its finding accordingly and direct that the proceedings shall be filed or the complaint shall be dismissed, as the case may be.

(3) If on receipt of such report the Council finds that the member of the Institute is guilty of any professional or other misconduct, it shall record a finding accordingly and shall proceed in the manner laid down in the succeeding sub-sections.

(4) Where the finding is that a member of the Institute has been guilty of a professional misconduct specified in the First Schedule, the Council shall afford to the member an opportunity of being heard before orders are passed against him on the case, and may thereafter make any of the following orders, namely:-

(a) reprimand the member;

(b) remove the name of the member from the Register for such period, not exceeding five years, as the Council thinks fit :

Provided that where it appears to the Council that the case is one in which the name of the member ought to be removed from the Register for a period exceeding five years or permanently, it shall not make any order referred to in clause (a) or clause (b) but shall forward the case to the High Court with its recommendations thereon.

(5) Where the misconduct in respect of which the Council has found any member of the Institute guilty is misconduct other than any such misconduct as is referred to in sub-section (4), it shall forward the case to the High Court with its recommendations thereon.

(6) On receipt of any case under sub-section (4) or sub-section (5), the High Court shall fix a date for the hearing of the case and shall issue a cause notice of' the date so fixed to be given to the member of the Institute concerned, the Council and to the Central Government, and shall afford such member, the Council and the Central Government an opportunity of being heard, and may thereafter make any of the following orders,

(a) direct that the proceedings be filed, or dismiss the complaint, as the case may be;

(b) reprimand the member;

(d) refer the case to the Council for further inquiry and report.

22. Professional misconduct defined-For the purpose of this Act, the expressions 'professional misconduct' shall be deemed to include any act or omission specified in any of the Schedules, but nothing in this section shall be construed to limit or abridge in any way the power conferred or duty cast on the Council under sub-section (1) of section 21 to inquire into the conduct of any member of the Institute under any other circumstances.

'Part I of the Second Schedule

A Chartered Accountant in practice shall be deemed to be guilty of professional misconduct, if he-

(1) to (5) **

(6) fails to report a material misstatement known to him to appear in a financial statement with which he is concerned in a professional capacity;

(7) is grossly negligent in the conduct of his professional duties."

6. As noted above, the respondent has not been found to have contravened clause (6), but clause (7). Latter clause relates to grossly negligent action in the conduct of professional duties. On the background facts, it has to be seen whether failure of the respondent to notice the mistake would constitute an act of negligence. It depends upon the fact whether the concerned person had applied his mind diligently to the job entrusted to him, and whether due care and caution, as is required to be adopted, was taken. The respondent took the stand that by mistake CIF value was typed out instead of FOB value. When a certificate is given, arithmetical accuracy has to be ensured. That is the minimum requirement to be done by a Chartered Accountant. The test, according to us, is whether in addition to the failure to do the duty, there was failure to act honestly and reasonably. Word 'negligencc' is associated in the provision with the word ,misconduct' and involves some element of moral culpability. Mere imprudence or want of judgment or grave error in judgment is not enough. Misconduct implies failure to act honestly and reasonably either according to the ordinary and natural standard or according to the standard of a particular profession. But error or misinterpretation of law and specially one view or another over a debatable construction cannot be a ground for the allegation and finding of professional misconduct against a Chartered Accountant. Negligence is the omission to do something which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It is not absolute or intrinsic, but relative to some circumstances of time, place or persons, imposing a duty to take care. In dealing with the matters of professional propriety, one cannot ignore the fact that the profession of Chartered Accountancy occupies the place of nobility, pride and honour and is a profession of trust. Expertise in the field of accounting and auditing is the hallmark of Chartered Accountant's profession. When a Chartered Accountant signs certificates, minimum that is expected to do is to verify the accuracy of the figures certified. As part of his professional duty and responsibility, he was required to take reasonable steps to satisfy himself that the figures were correct. Elementary verification would have been sufficient to notice the mistake. Failure to carry out such elementary verification amounts to gross negligence and carelessness. Skill, care and caution, which a reasonably competent and cautious auditor was expected to exercise, was not done. Lack of it has affected veracity of his competence. The intendment and object of the Act is to maintain the standard of the profession at a high level.

7. In Kingston Cotton Mills Co. In re (1896-2 Ch. 279) Lopes L.J. observed :

". . . It is the duty of an auditor to bring to bear on the work he has to perform that skill and care and caution which a reasonably competent, careful, and cautious auditor would use, what is reasonable skill, care and caution must depend on the particular circumstances of each case. An auditor is not bound to be a detective, or, as was said, to approach his work with suspicion or with a foregone conclusion that there is something wrong. He is a watch-dog, but not a bloodhound... If there is anything calculated to excite suspicion he should probe it to the bottom; but in the absence of anything of that kind he is only bound to be reasonably cautious and careful."

8. It was observed by the Apex Court in the context of an advocates' professional misconduct that an act which is done otherwise than with utmost good faith is unprofessional-Pandurang Dattatreya Khandekar v. Bar Council of Maharashtra . Decisions of the Privy Council in George Frier Grahame v. Attorney General Fiji AIR 1936 P.C. 224 and the Apex Court in the matter of P. An Advocate, In re AIR 1963 SC 1313 were referred to in Pandurang Dattatreya Khandekar's case (supra). It may be noted here that in Allinson v. General Council of Medical Education & Registration (1894) 1 QB 750 it was observed as follows :

If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of "infamous conduct in a professional respect".

Said definition of 'infamous conduct in a professional respect' was reiterated by Darling in: A Solicitor Ex Parte the Law Society, In re (1912) 1 KB 302 and referred to in Pandurang Dattatreya Khandekar, George Frier Grahame and P. An Advocate's cases (supra).

9. Though it cannot be said that due care and caution had been exercised by the respondent, we feel that the respondent was acting bona fide. This conduct is borne out from the fact that the respondent himself had issued a letter to concerned party pointing out the mistake. He had indicated that had he known the authorities before whom the certified application was to be filed he would have intimated the said authorities also. That being the position, we feel that a word of caution to the respondent that he should have been more careful would suffice instead of reprimanding him as recommended by the Council. The case is to be closed accordingly.

The reference is disposed of.