( 1 ) THIS is a Reference made by the Council of the Institute of Chartered Accountants of India being the petitioner under Section 21 (5) of the Chartered Accountants Act,1949 (the Act ). The Reference is in respect of Shri Mukesh R. Shah, Chartered Accountant (Respondent) in the matter of recommendation of the petitioner made in the 228th Meeting held at New Delhi from 18th. to 20th. October,2002.

( 2 ) SHRI S. K. Agarwal, Commissioner of Income Tax, Ahmedabad (the complainant) made the following allegations/charges against the respondent :"1. 1 He had fabricated and filed challans for advance tax in respect of certain clients and relatives and then filed their returns of Income showing nominal income so as to claim refund against advance tax paid. On investigation it was found by the Income Tax Department that the Respondent had changed the amount of advance tax paid in copies of challans that are retained by the assessee and sent to the Department alongwith the return. The returns also, in many cases, were verified by him. The address given in the returns was his own so that the refund vouchers could reach him and he had, in fact, encashed these vouchers by opening bank accounts in the names of the assessees. He is said to have admitted having committed this forgery etc. thereby defrauding the exchequer to the tune of Rs. 15 lakhs. As per FIR filed by the Income Tax Officer, the Respondent was arrested and was remanded first to police custody till 6/05/1993 and thereafter to judicial custody till 20th May,1993. 1. 2 The charges, if proved, would render the Respondent guilty of "other misconduct" under Section 21 read with Section 22 of the Chartered Accountants Act,1949".

( 3 ) AS per the provisions of the Act and the Regulations framed thereunder, the petitioner forwarded on 16. 12. 1993, a copy of the complaint inviting the respondent to file his written statement. No written statement was submitted by the respondent despite protracted correspondence between the petitioner and the respondent and ultimately the petitioner at its meeting held in December 1998 at New Delhi, considered the complaint and the documents annexed thereto so as to record a prima facie opinion that the respondent was guilty of professional and/or other misconduct and accordingly referred the case to the Disciplinary Committee constituted under the Act for necessary inquiry.

( 4 ) THE Disciplinary Committee held various hearings commencing from 29. 4. 1999 and ending on 23. 5. 2001. After perusing the documents on record, examination of the witnesses and considering the submissions made on behalf of the complainant as well as the respondent the Disciplinary Committee submitted its report dated 3. 2. 2002. The Disciplinary Committee was of the opinion that a fraud had been perpetrated on the Income Tax Department, Ahmedabad and that the respondent was responsible for the said fraud; that in committing this fraud and various other acts as alleged, the respondent had adopted a course of conduct unbecoming of a professional. The respondent was therefore found guilty of "other misconduct" under Sections 22 read with 21 of the Act.

( 5 ) THE report of the Disciplinary Committee was forwarded both to the complainant and the respondent by the petitioner on 17. 8. 2002 and the parties were informed that the said report would come up for consideration at one of its forthcoming meetings. The parties were also informed to forward their written representations, if any, as also, if they so desired, to appear before the petitioner Council either in person or through a representative and make oral submissions. On 26. 8. 2002 the parties were informed that the meeting of the Council would be held on 13. 9. 2002 to consider the report of the Disciplinary Committee. The respondent submitted written representation dated 4. 9. 2002. On 11. 9. 2002 a letter was faxed by the respondent wherein adjournment was sought for a period of 3 to 4 weeks on the groun