The Cost and Works Accountants Act, 1959

Cost and Works Accountants Act, 1959

I PRELIMINARY

1. Short title extend and commencement

1. (1) This Act may be called the Cost and Works Accountants Act 1959.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may by notification in the Official Gazette appoint.

2. Definitions and interpretation

2. (1) In this Act unless the context otherwise requires –

(a) “Associate” means an associate member of the Institute;

(b) “Cost Accountant” means a person who is a member of the Institute;

(d) “Dissolved company” means the Institute of Cost and Works Accountants registered under the Companies Act 1956 (8 of 1956);

(e) “Fellow” means a fellow of the Institute;

(f) “Institute” means the Institute of Cost and Works Accountants of India constituted under this Act;

(g) “Prescribed” means prescribed by regulations made under this Act;

(h) “President” means the President of the Council;

(i) “Register” means the Register of members maintained under this Act;

(j) “Vice-President” means the Vice-President of the Council;

(k) “Year” means the period commencing on the 1st day of April of any year and ending on the 31st day of March of the succeeding year.

(2) Save as otherwise provided in this Act a member of the Institute shall be deemed “to be in practice” when individually or in partnership with one or more members of the Institute in practice he in consideration of remuneration received or to be received –

(i) engages himself in the practice of cost and work accountancy; or

(ii) offers to perform or performs services involving the costing or pricing of goods or services or the preparation verification or certification of cost accounting and related statements or holds himself out to the public as a cost accountant in practice; or

(iii) renders professional services or assistance in or about matters or principle or detail relating to cost accounting procedure or the recording presentation or certificate of costing facts or data; or

(iv) renders such other services as in the opinion of the Council are or may be rendered by a cost accountant in practice; and the words “to be in practice” with their grammatical variations and cognate expression shall be construed accordingly.

Explanation: A member of the Institute who is a whole-time salaried employee of any person shall not be deemed to be in practice within the meaning of this sub-section.

II THE INSTITUTE OF COST AND WORKS ACCOUNTANTS

3. Incorporation of the Institute

3. (1) All persons whose names are entered in the Register at the commencement of this Act and all persons who may hereafter have their names entered in the Register under the provisions of this Act so long as they continue to have their names borne on the said Register are hereby constitute a body corporate by the name of the Institute of Cost and Works Accountants of India and all such persons shall be known as members of the Institute.

(2) The Institute shall have perpetual succession and a common seal and shall have power to acquire hold and dispose of property both movable and immovable and shall by its name sue or be sued.

4. Entry of names in the Register

4. (1) Any of the following persons shall be entitled to have his name entered in the Register namely –

(i) any person who was an associate or a fellow of the dissolved company (other than an honorary associate or honorary fellow thereof) immediately before the commencement of this Act except any such person who is not a permanent resident of India and is not at such commencement practising as a cost accountant in India;

(ii) any person who has passed such examination and completed such training as may be prescribed for members of the Institute;

(iii) any person who at the commencement of this Act is engaged in the practice of cost accountancy in India and who fulfils such conditions as the Central Government or the Council may specify in this behalf;

(iv) any person who has passed such other examination and completed such other training without India as is recognised by the Central Government or the Council as being equivalent to the examination and training prescribed for members of the Institute :

Provided that in the case of any person who is permanently residing in India the Central Government or the Council may impose such further conditions as it may deem fit.

(v) any person domiciled in India who at the commencement of this Act is studying for any foreign examination and is at the same time undergoing training whether within or without India or who having passed such examination is at such commencement undergoing training whether within or without India :

Provided that such foreign examination and training are recognised by the Central Government or the Council in this behalf:

Provided further that the person passes the examination and completes his training within five years from the commencement of this Act.

(2) Every person belonging to the class mentioned in clause (i) of sub-section (1) shall have his name entered in the Register without the payment of any entrance fee.

(3) Every person belonging to any of the classes mentioned in clauses (ii), (iii), (iv) and (v) of sub-section (1) shall have his name entered in the Registered or application being made and granted in the prescribed manner and not payment of the prescribed entrance fee which shall not exceed ropes three hundred in any case.

(4) The Central Government shall take such steps as may be necessary for the purpose of having the names of all persons belonging to the class mentioned in clause (i) of sub-section (1) entered in the Register at the commencement of this Act.

5. Fellows and associates

5. (1) The members of the Institute shall be divided into two classes designated respectively as associates and fellows.

(2) Any person other than a person to whom the provisions of sub-section (3) apply shall on his name being entered in the Register be deemed to have become an associate member of the Institute and so long as his name remains so entered shall be entitled to use the letters AICWA after his name to indicate that he is an associate member of the Institute of Cost and Works Accountants.

(3) Any person who was a fellow of the dissolved company and who is entitled to have his name entered in the Register under clause (i) of sub-section (1) of section 4 shall be entered in the Register as a fallow of the Institute.

(4) A member being an associate who has been in continuous practice in India for at least five years whether before or after the commencement of this Act or whether partly before and party after the commencement of this Act and a member who has been an associate for a continuous period of not less than five years and who possesses such qualifications as the Council may prescribe with a view to ensuring that he has experience equivalent to the experience normally acquired as a result of continuous practice for a period of five years as a cost accountant shall on payment of the prescribed entrance fee which shall not exceed rupees two hundred in any case and on application made and granted in the prescribed manner be entered in the Register as a fellow of the Institute.

Explanation I: For the purposes of this sub-section a person shall be deemed to have practised in India for any period for which he has held a certificate of practice under section 6 notwithstanding that he did not actually practise during that period.

Explanation II: In computing the continuous period during which a person has been an associate of the Institute there shall be included any continuous period during which the person has been an associate of the dissolved company immediately before he become an associate of the Institute.

(5) Any person whose name is entered in the Register as a fellow of the Institute and so long as his name remains so entered shall be entitled to use the letter FICWA after his name to indicate that he is a fellow of the Institute of Cost and Works Accountants.

6. Certificate of practice

6. (1) No member of the Institute shall be entitled to practise whether in India or elsewhere unless he has obtained from the Council a certificate of practice.

(2) Every such member shall make application in such form and pay such annual fee for his certificate as may be prescribed and such fee shall be payable on or before the 1st day of April in each year :

Provided that if a member of the Institute who was in practice immediately before the commencement of this Act has made within one months of such commencement an application for the grant of certificate of practice he shall not be deemed to have contravened the provisions of sub-section (1) by reason of his having practised during the period between such commencement and the disposal of the application.

7. Members to be known as cost accountants

7. Every member of the Institute in practice shall and any other member may use the designation of a cost accountant and no member using such designation shall use any other description whether in addition thereto or in substitution therefor:

Provided that nothing in this section shall be deemed to prohibit any such member from adding any other description or letters to his name if entitled thereto to indicate membership of such other Institute of accountancy whether in India or elsewhere as may be recognised in this behalf by the Council or any other qualification that he may possess or to prohibit a firm all the partners of which are members of the Institute and in practice from being known by its firm name as cost accountants.

8. Disabilities

8. Notwithstanding anything contained in section 4 a person shall not be entitled to have his name entered in or borne on the Register if he –

(i) has to attained the age of twenty-one years at the time of his application for the entry of his name in the Register; or

(ii) is of unsound mind and stands so adjudged by a competent court; or

(iii) is an undischarged insolvent; or

(iv) being a discharged insolvent has not obtained from the court a certificate stating that this insolvency was caused by misfortune without any misconduct on his part; or

(v) has been convicted by a competent court whether within or without India of an offence involving moral turpitude and punishable with imprisonment or of an offence not of a technical nature committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or on an application made by him in this behalf the Central Government has by an order in writhing removed the disability; or

(vi) has been removed from membership of the Institute on being found on inquiry to have been guilty of professional or other misconduct :

Provided that a person who has been removed from membership for a specified period shall not be entitled to have his name entered in the Register until the expiry of such period.

III COUNCIL OF THE INSTITUTE

9. Constitution of the Council of Institute

9. (1) There shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it by or under this Act.

(2) The Council shall be composed of –

(a) not more than twelve persons elected by members of the Institute from amongst the fellows of the Institute chosen in such manner and from such regional constituencies as may be specified in this behalf by the Central Government by notification in the Official Gazette; and

(b) not more than four persons nominated by the Central Government.

10. Mode of election to Council

10. (1) Elections under clause (a) of sub-section (2) of section 9 shall be conducted in the prescribed manner:

Provided that the first election under the said clause shall be held in such manner as the Central Government may specify in this behalf.

(2) Where any dispute arises regarding any such election the matter shall be referred by the Council to a Tribunal appointed by the Central Government in this behalf and the decision of such Tribunal shall be final:

Provided that no such reference shall be made except on an application made to the Council by an aggrieved party within thirty days from the date of the declaration of the result of the election.

(3) The expenses of the Tribunal shall be borne by the Council.

11. Nomination in default of election

11. If the members of the Institute fail to elect any member under clause (a) of sub-section (2) of section 9 from any of the regional constituencies that may be specified under that clause the Central Government may nominate any duly qualified person from such constituency to fill the vacancy and any person so nominated shall be deemed to be a duly elected member of the Council.

12. President and Vice-President

12. (1) The Council at its first meeting shall elect two of its members to be respectively the President and the Vice-President thereof and so often as the office of the President or the Vice-President becomes vacant the Council shall choose a person to be the President or the Vice-President as the case may be:

Provided that on the first constitution of the Council a member of the Council nominated in this behalf by the Central Government shall discharge the functions of the President until such time as a President is elected under the provisions of this sub-section.

(2) The President shall be the Chief Executive Authority of the Council.

(3) The President or the Vice-President shall hold office for a period of one year from the date on which he is chosen but so as not to extend beyond his term of office as a member of the Council and subject to his being a member of the Council at the relevant time he shall be eligible for re-election:

Provided that the President of the Council at the time of the expiration of its duration shall continue to hold office until a new Council is constituted in accordance with the provisions of this Act.

13. Registration of membership and casual vacancies

13. (1) Any member of the Council may at any time resign his membership by writing under his hand addressed to the President and the seat of such member shall become vacant when such resignation is notified in the Official Gazette.

(2) A member of the Council shall be deemed to have vacated his seat if he is declared by the Council to have been absent without sufficient cause from three consecutive meetings of the Council or if his name is for any cause removed from the Register under the provisions of section 20.

(3) A casual vacancy in the Council shall be filled by fresh election from the constituency concerned or by nominated by the Central Government as the case may be and the person elected or nominated to fill the vacancy shall hold office until the dissolution of the Council:

Provided that no election shall be held to fill a casual vacancy occurring within six months prior to the date of the expiration of the duration of the Council but such a vacancy may be filled by nomination by the Central Government after consultation with the President of the Council.

(4) No act done by the Council shall be called in question on the ground merely of the existence of any vacancy in or defect in the constitution of the Council.

14. Duration and dissolution of Council

14. (1) The duration of any Council constituted under this Act shall be three years from the date of its first meeting.

(2) Notwithstanding the expiration of the duration of a Council (hereinafter referred to as the former Council) the former Council shall continue to exercise its functions under this Act until a new Council is constituted in accordance with the provisions of this Act and on such constitution the former Council shall stand dissolved.

15. Functions of the Council

15. (1) The duty of carrying out of the provisions of this Act shall be vested in the Council.

(2) In particular and without prejudice to the generality of the foregoing power the duties of the Council shall include –

(a) the examination of candidates for enrolment and the prescribing of fees therefor;

(b) the registration and training of students;

(d) the recognition of foreign qualification and training for purposes of enrolment;

(e) the granting or refusal of certificate of practice under this Act;

(f) the maintenance and publication of a Register of persons qualified to practise as cost accountants;

(g) the levy and collection of fees from members examinees and other persons;

(h) the removal of names from the Register and restoration to the Register of names which have been removed;

(i) the regulation and maintenance of the status and standard of professional qualifications of members of the Institute;

(j) the carrying out by financial assistance to persons other than members of the Council or in any other manner of research in accountancy;

(k) the maintenance of libraries and publication of books and periodicals relating to cost accountancy and allied subjects; and

(l) the exercise of disciplinary powers conferred by this Act.

16. Staff remuneration and allowances

16. (1) For the efficient performance of its duties the Council may –

(a) appoint a Secretary who may also if so decided by the Council act as Treasurer;

(b) appoint such other persons on its staff as it deems necessary;

(c) require and take from the Secretary or from any other employee of the Council such security for the due performance of his duties as the Council considers necessary;

(d) fix the salaries fees allowances and other conditions of services of the Secretary and other employees of the Council;

(e) with the previous sanction of the Central Government fix the allowances of the President Vice-President and other members of the Council and its Committees.

(2) The Secretary of the Council shall be entitled to participate in the meetings of the Council and the Committees thereof but shall not be entitled to vote thereat.

17. Committee of the Council

17. (1) The Council shall constitute from amongst its members the following Standing Committee namely –

(i) an Executive Committee;

(ii) a Disciplinary Committee; and

(iii) an Examination Committee;

(2) The Council may also form a Training and Educational Facilities Committee and such other committees from amongst its members as it deems necessary for the purpose of carrying out the provisions of this Act.

(3) The Executive Committee shall consist of the President and the Vice-President ex officio and three other members of the Council elected by the Council.

(4) The Disciplinary Committee shall consist of the President ex officio one member to be nominated by the Central Government from amongst the members nominated to the Council by that Government and one member to be elected by the Council.

(5) The Examination Committee shall consist of the President or the Vice-President ex officio as the Council may decide and two other members of the Council elected by the Council.

(6) Notwithstanding anything contained in this section any Committee formed under sub-section (2) may with the sanction of the Council co-opt such other members of the Institute not exceeding two-thirds of the total membership of the Committee as the Committee thinks fit and any member so co-opted shall be entitled to exercise all the rights of a member of the Committee.

(7) The President shall be the Chairman of every committee of which he is a member and in his absence the Vice-President if he is a member of the committee shall be the Chairman.

(8) The Standing Committee and other committees formed under this section shall exercise such functions and be subject to such conditions in the exercise thereof as may be prescribed.

18. Finances of the Council

18. (1) There shall be established a fund under the management and control of the Council into which shall be paid all moneys received by the Council and out of which shall be met all expenses and liabilities properly incurred by the Council.

(2) The Council may invest any money for the time being standing to the credit of the fund in any government security or in any other security approved by the Central Government.

(3) The Council shall keep proper accounts of the funds distinguishing capital from revenue.

(4) The annual accounts of the Council shall be subject to audit by a chartered accountant in practice within the meaning of the Chartered Accountants Act 1949 (38 of 1949) to be appointed annually by the Council:

Provided that no member of the Council who is chartered accountant or a person who is in partnership with such member shall be eligible for appointment as an auditor under this sub-section.

(5) As soon as may be practicable at the end of each year but not later than the 30th day of September of the year next following the Council shall cause to be punished in the Gazette of India a copy of the audited accounts and the Report of the Council for that year and copies of the said accounts and Report shall be forwarded to the Central Government and to all the members of the Institute.

(6) The Council may borrow from a scheduled bank as defined in the Reserve Bank of India Act 1934 (2 of 1934) or from the Central Government –

(a) any money required for meeting its liabilities on capital account on the security of the fund or on the security of any other assets for the time being belonging to it; or

(b) for the purpose of meeting current liabilities pending the receipt of income by way of temporary loan or over-draft.

IV REGISTER OF MEMBERS

19. Register

19. (1) The Council shall maintain in the prescribed manner a Register of the members of the Institute.

(2) The Register shall includes the following particulars about every member of the Institute namely –

(a) his full name date of birth domicile residential and professional addresses;

(b) the date on which his name his entered in the Register;

(d) whether he holds a certificate of practice; and

(e) any other particulars which may be prescribed.

(3) The Council shall cause to be published in such manner as may be prescribed a list of members of the Institute as on the 1st day of April of each year and shall if request to do so by any such member send him a copy of such list.

(4) Every member of the Institute shall on his name being entered in the Register pay such annual membership fee differing in amount according as he is an associate or a fellow as may be prescribed.

20. Removal from the Register

20. (1) The Council may remove from the Register the name of any member of the Institute –

(a) who is dead; or

(b) from whom a request has been received to that effect; or

(d) who is found to have been subject at the time when his name was entered in the Register or who at any time thereafter has become subject to any of the disabilities mentioned in section 8 or who for any other reason has ceased to be entitled to have his name borne on the Register.

(2) The Council shall remove from the Register the name of any member in respect of whom an order has been passed under this Act removing him from membership of the Institute.

V MISCONDUCT

21. Procedure in inquiries relating to misconduct of members of Institute

21. (1) Where on receipt of information by or 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 constituted under section 17 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 compliant 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 the Council is of opinion 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 a misconduct other than any such misconduct as is referred to in sub-section it shall forward the case to the High Court with its recommendations thereon.

(6) On receipt of any case under sub-section (4) of sub-section (5) the High Court shall fix a date for the hearing of the case and shall 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 namely –

(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.

(7) Where it appears to the court that the transfer of any case pending before it to another High Court will promote the end of justice or tend to the general convenience of the parties it may so transfer the case subject to such conditions if any as it thinks fit to impose and the High Court to which such case is transferred shall deal with it as if the case had been forwarded to it by the Council.

Explanation I: In this section “High Court” means the highest civil court of appeal not including the Supreme Court exercising jurisdiction in the area in which the person whose conduct is being inquired into carried on business or has his principal place of business at the commencement of the inquiry:

Provided that where the cases relating to two or more members of the Institute have to be forwarded by the Council to different High Courts the Central Government shall having regard to the ends of justice and the general convenience of the parties determine which of the High Courts to the exclusion of others shall hear the cases against all the members.

Explanation II: For the purposes of this section “member of the Institute” includes a person who was a member of the Institution on the date of alleged misconduct although he has ceased to be a member of the Institute at the time of the inquiry.

(8) For the purposes of any inquiry under this section the Council and the Disciplinary Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure 1908 (5 of 1908) in respect of the following matters –

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) the discovery and production of any document; and

22. Misconduct defined

22. For the purposes of this Act the expression “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.

VI REGIONAL COUNCILS

23. Constitution and functions of Regional Councils

23. (1) For the purpose of advising and assisting on matters concerning its functions the Council may constitute such Regional Councils as and when it deems fit for one or more of the regional constituencies that may be specified by the Central Government under clause (a) of sub-section (2) of section 9.

(2) The Regional Councils shall be constituted in such manner and exercise such functions as may be prescribed.

VII PENALTIES

24. Penalty for falsely claiming to be a member etc.

24. Any person who –

(i) not being a member of the Institute

(a) represent that he is a member of the Institute; or

(b) uses the designation cost accountant; or

(ii) being a member of the Institute but not having a certificate of practice represents that he is in practice or practices as a cost accountant; shall be punishable on first conviction with fine which may extend to one thousand rupees and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both.

25. Penalty for using name of the Council awarding degrees of cost accountancy etc.

25. (1) Save as otherwise provided in this Act no person shall –

(i) use a name or a common seal which is identical with the name or the common seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public;

(ii) award any degree diploma or certificate or bestow any designation which indicates or purports to indicates the position or attainment of any qualification or competence in cost accountancy similar to that of a member of the Institute; or

(iii) seek to regulate in any manner whatsoever the profession of cost and works accounts.

(2) Any person contravening the provisions of sub-section (1) shall without prejudice to any other proceedings which may be taken against him be punishable on first conviction with fine which may extend to one thousand rupees and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both.

(3) Nothing contained in this section shall apply to any university established by law or to any body affiliated to the Institute.

(4) If the Central Government is satisfied that any diploma or certificate or any designation granted or conferred by any person other than the Institute which purports to be a qualification in cost accountancy but which in the opinion of the Central Government falls short of the standard of qualifications prescribed for cost accountants and does not in fact indicate or purport to indicate the position or attainment of any qualification or competence in cost accountancy similar to that of a member of the Institute if may by notification in the Official Gazette and subject to such conditions as it may think fit to impose declare that this section shall not apply to such diploma or certificate or designation.

26. Companies not to engage in cost accountancy

26. (1) No company whether incorporated in India or elsewhere shall practice as cost accountants.

(2) Any contravention of the provisions of sub-section (1) shall be punishable on first conviction with fine, which may extend to one thousand rupees and on any subsequent conviction to five thousand rupees.

27. Unqualified persons not to sign documents

27. (1) No person other than a member of the Institute shall sign any document on behalf of a cost accountant in practice or a firm of such cost accountant in his or its professional capacity.

(2) Any person contravening the provision of sub-section (1) shall without prejudice to any other proceedings which may be taken against him be punishable with fine which may extend on first conviction to one thousand rupees and on any subsequent conviction with imprisonment which may extend to six months or with fine which may be extend to five thousand rupees or with both.

28. Offences by companies

28. (1) If the person committing an offence under this Act is a company the company as well as every person in charge of and responsible to the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent that commission of such offence.

(2) Notwithstanding anything contained in this sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or that the commission of the offence is attributable to any neglect on the part of any director manager secretary or other officer of the company such director manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation: For the purposes of this section –

(a) “Company” with respect to an offence under section 24, section 25, or section 27 means any body corporate and includes a firm or other association of individuals; and with respect to an offence under section 26 means a body corporate; and

(b) “Director” in relation to a firm means a partner in the firm.

29. Sanction to prosecute

29. No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government.

VIII DISSOLUTION OF THE INSTITUTE OF COST AND WORKS ACCOUNTANTS REGISTERED UNDER THE COMPANIES ACT 1956 (1 OF 1956)

30. Dissolution of the Institute of Cost and Works Accountants registered under the Companies Act 1956

30. On the commencement of this Act –

(a) the company known as the Institute of Cost and Work Accountants registered under the Companies Act 1956 (1 of 1956) shall be dissolved and thereafter no person shall make assert to take any claims demand or proceedings against the dissolved company or against any officer thereof in his capacity as such officer except insofar as may be necessary for enforcing the provisions of this Act;

(b) the right of every member to or in respect of the dissolved company shall be extinguished and thereafter no member of that company shall make assert or take any claims or demands or proceedings in respect of that company except as provided in this Act.

31. Transfer of assets and liabilities of the dissolved company of the Institute

31. (1) On the commencement of this Act there shall be transferred to and vested in the Institute all the assets and liabilities of the dissolved company.

(2) The assets of the dissolved company shall be deemed to include all rights and powers and all property whether movable or immovable of the company including in particular cash balances reserve funds investments deposits and all other interests and rights in or arising out of such property as may be in the possession of the dissolved company and all book of accounts or documents of the dissolved company and the liabilities shall be deemed to include all debts liabilities and obligations of whatever kind then existing of that company.

(3) All contracts debts bonds agreements and other instruments of whatever nature to which the dissolved company is a party subsisting or having effect immediately before the commencement of this Act shall be of as full force and effect against or in favour of the Institute as the case may be and may be enforced as fully and effectively as if instead of the dissolved company the Institute had been a party thereto.

(4) If on the commencement of this Act any suit appeal or other legal proceeding of whatever nature by or against the dissolved company is pending the same shall not abate be discontinue or be in any way prejudicial affected by reason of the transfer to the Institute of the assets and liabilities of the dissolved company or of any thing contained in this Act but the suit appeal or other proceeding may be continued prosecuted and enforced by or against the Institute in the same manner and to the same extent as it would or may be continued prosecuted and enforced by or against the dissolved company if this Act had not been passed.

32. Provisions respecting employees of the dissolved company

32. (1) Every person employed in the dissolved company prior to the 1st day of September 1958 and still in its employment immediately before the commencement of this Act shall as from such commencement become an employee of the Institute shall hold his office or service therein by the same tenure and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity as he would have held the same under the dissolved company if this Act had not been passed and shall continue to do so unless and until his employment in the Institute is terminated or until his remuneration terms and conditions of employment are duly altered by he Institute.

(2) Notwithstanding anything contained in the Industrial Disputes Act 1947 (14 of 1947) or in any other law for the time being in force the transfer of the services of any employee of the dissolved company to the Institute shall not entitled any such employee to any compensation under that Act or other law and no such claim shall be entertained by any court Tribunal or other authority.

IX MISCELLANEOUS

33. Appeals

33. (1) Any member of the Institute aggrieved by any order of the Council imposing on him any of the penalties referred to in clause (a) or clause (b) of sub-section (4) of section 21 may with in thirty days if it is satisfied that the member was prevented by sufficient cause form filing the appeal in time.

(2) The High Court may on its own motions or otherwise after calling for the records of any case revise any order made by the Council under sub-section (2) or sub-section (4) of section 21 and may –

(a) confirm modify or set aside the order;

(b) impose any penalty or set aside reduce confirm or enhance the penalty imposed by the order;

(c) remit the case of the Council for such further enquiry as the High Court considers proper in the circumstances of the case;

(d) pass such other order as the High Court thinks fit :

Provided that no order of the Council shall be modified or set aside unless the council has been given an opportunity of being heard and no order imposing or enhancing a penalty shall be passed unless the person concerned has been given an opportunity of being heard.

Explanation: In this section “High Court” and “member of the Institute” have the same meanings as in section 21.

34. Alteration in Register and cancellation of certificate

34. (1) Where an order is made under this Act reprimanding a member a record of the punishment shall be entered against his name in the Register.

(2) Where the name of any member is removed the certificate of practice granted to him under this Act shall be recalled and cancelled.

35. Directions of the Central Government

35. (1) The Central Government may from time to time issue such directions to the Council as the opinion of the Central Government are conducive to the fulfilment of the objects of this Act and in the discharge of its functions the Council shall be bound to carry out any such directions.

(2) Directions issued under sub-section (1) may include directions to the Council to make any regulations or to amend or revoke any regulations already made.

(3) If in the opinion of the Central Government the Council has persistently made default in giving effect to the directions issued under this section the Central Government may after giving an opportunity to the Council to state its cases by order dissolve the Council whereafter a new Council shall be constituted in accordance with the provisions of this Act with effect from such date as may be specified by the Central Government.

(4) Where the Central Government passes an order under sub-section (3) dissolving the Council it may pending the constitution of new Council in accordance with the Provisions of this Act authorise any person or body of persons to take over the management of the affairs of the Institute and to exercise such functions as may be specified in this behalf by the Central Government.

36. Protection of action taken in good faith

36. No suit prosecution or other legal proceeding shall lie against the Central Government or the Council in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any regulations or orders made thereunder.

37. Maintenance of branch offices

37. (1) Where a cost accountant in practice or a firm of such cost accountants has more than one office in India each one of such offices shall be in such separate charge of a member of the Institute:

Provided that the Council may in suitable cases exempt any cost accountant in practice or firm of such cost accountants from the operation of this sub-section.

(2) Every cost accountant in practice or firm of such cost accountants maintaining more than one office shall send to the Council a list of office and the persons in charge thereof and shall keep the Council informed of any changes in relation thereto.

38. Reciprocity

38. (1) Where any country specified by the Central Government in this behalf by notification in the Official Gazette prevents persons of Indian domicile from becoming member of any institution similar to the Institute established under this Act or from practising the profession of cost accountancy or subjects them to unfair discrimination in that country no subject of any such country shall be entitled to become a member of the Institute or practise the profession of cost accountancy in India.

(2) Subject to the provisions of sub-section (1) the Council may prescribe the conditions if any subject to which foreign qualifications relating to cost accountancy shall be recognised for the purposes of entry in Register.

39. Power to make regulations

39. (1) The Council may by notification in the Gazette of India make regulations for the purpose of carrying out the objects of this Act and a copy of such regulations shall be sent to each members of the Institute.

(2) In particular and without prejudice to the generality of the foregoing power such regulations may provide for all or any of the following matters namely: –

(a) the standard and conduct of examinations under this Act;

(b) the qualification for the entry of the name of any person in the Register as a member of the Institute;

(d) the conditions under which any examination or training may be treated as equivalent to the examination or training prescribed for members of the Institute;

(e) the conditions under which any foreign qualification may be recognised;

(f) the manner in which and the conditions subject to which applications for entry in the Register may be made;

(g) the fees payable for membership of the Institute and the annual fees payable by associates and fellows of the Institute in respect of their certificates;

(h) the manner in which elections to the Council and the Regional Councils may be held;

(i) the particulars to be entered in the Register;

(j) the functions of Regional Councils;

(k) the regulation an maintenance of the status and standard of professional qualifications of members of the Institute;

(l) the carrying out of research in accountancy;

(m) the maintenance of libraries and publication of books and periodicals relating to cost accountancy and allied subjects;

(n) the management of the property of the Council and the maintenance and audit of its accounts;

(o) the summoning and holding the meetings of the Council and committees thereof the time and places of such meetings the procedure to be followed thereat and the number of members necessary to form a quorum;

(p) the manner in which the annual list of members of the Institute shall be published;

(q) the powers duties and functions of the President and the Vice-President of the Council;

(r) the functions of the standing and other committees and the conditions subject to which such functions shall be discharged.

(s) the terms of office and the powers duties and functions of the Secretary and other employees of the Council;

(t) the exercise of disciplinary powers conferred by this Act;

(u) the terms and conditions of service of persons who have becomes employees of the Institute under section 32 of this Act;

(v) the registration and training of students and the fees to be charged therefor; and

(w) any other matter which is required to be or may be prescribed under this Act.

(3) All regulations made by the Council under this Act shall be subject to the condition of previous publication and to the approval of the Central Government.

(4) Notwithstanding anything contained in sub-sections (1) and (2) the Central Government may frame the first regulations for the purposes mentioned in this section and such regulations shall be deemed to have been made by the Council and shall remain in force until they are amended altered or revoked by the Council.

(5) Every regulation made under this Act shall be laid as soon as may be after it is made before each Houses of Parliament while it is in session for a total period of thirty days which may be comprise in one session or in two or more successive sessions and if before the expiry of the session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made the regulation shall thereafter have effect only in such modified form or be of no effect as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.

SCHEDULE I

[Secs. 21(4) and 22]

PART I Professional Misconduct In Relation To Cost Accountants in Practice

A cost accountant in practice shall be deemed to be guilty of professional misconduct if he –

(1) allows any person to practise in his name as a cost accountant unless such person is also a cost accountant in practice and is in partnership with or employed by himself;

(2) pays or allows or agrees to pay or allow directly or indirectly and share commission or brokerage in the fees or profits of his professional work to any person other than a member of the Institute or a partner or a retired partner or the legal representative of deceased partner.

Explanation: In this item “partner” includes a person residing outside India with whom a cost accountant in practice has entered into partnership which is not in contravention of item (4) of this part.

(3) accepts or agrees to accept any part of the profits of the professional work of a lawyer auctioneer broker or other agent who is not a member of the Institute;

(4) enters into partnership with any person other than a cost accountant in practice or a person resident without India who but for his residence abroad would be entitled to be registered as a member of the Institute under clause (iv) of sub-section (1) of section 4 or whose qualifications are recognised by the Central Government or the Council for the purpose of permitting such partnerships provided that the cost accountant shares in the fees or profits of the professional work of the partnership both within and without India;

(5) secures either the services of a person not qualified to be his partner or by means which are not open to a cost accountant and professional work;

(6) solicits clients or professional work either directly or indirectly by circular advertisement personal communication or interview or by any other means;

(7) advertises his professional attainments or services or uses any designation or expression other than cost accountant on professional documents visiting cards letter heads or sign boards unless it be a degree of a university established by law in India or recognised by the Central Government or a title indicating membership of the Institute of Cost and Works Accountants of India or any other institution that has been recognised by the Central Government or may be recognised by the Council;

(8) accepts a position as cost accountant previously held by another cost accountant in practice without first communicating with him in writing;

(9) charges or offers to charge accepts or offers to accept in respects 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 except in cases which are permitted under any regulations made under this Act;

(10) engages in any business or occupation other than the profession of cost accountant unless permitted by the Council so to engage :

Provided that nothing contained herein shall disentitle a cost accountant from being a director of a company unless he or any of the partners is interested in such company as accountant;

(11) accepts a position as cost accountant previously held by some other cost accountant in practice in such conditions as to constitute under-cutting;

(12) allows a person not being a member of the Institute in practice or a member not being his partner to sign on his behalf or on behalf of his firm any cost or pricing statements or any other statements related thereto.

PART II Professional Misconduct in Relation to Members of the Institute in Service

A member of the Institute (other than a member in practice) shall be deemed to be guilty of professional misconduct if he being an employee of any company firm or person –

(1) pays or allows or agree to pay directly or indirectly to any person any share in the emoluments of the employment undertaken by the member;

(2) accepts or agrees to accepts any part of fees profits or gains from a lawyer a cost accountant or broker engaged by such company firm or person or agent or customer of such company firm or person by way of commission or gratification;

(3) discloses confidential information acquired in the course of his employment otherwise than as required by any law for the time being in force or as permitted by his employer.

PART III Professional Misconduct in relation to Members of the Institute Generally

A member of the Institute whether in practice or not shall be deemed to be guilty of professional misconduct if he –

(1) includes in any statement return or form to be submitted to the Council any particulars knowing them to be false;

(2) not being a fellow style himself as a fellow;

(3) does not supply the information called for or does not comply with the requirements asked for by the Council or any of its Committees.

SCHEDULE II

[Secs. 21(5) and 22]

PART I Professional Misconduct in relation to a Cost Accountants in Practice requiring action by a High Court

A cost accountant in practice shall be deemed to be guilty of professional misconduct if he –

(1) disclose information acquired in the course of his professional engagement to any person other than the client so engaging him without the consent of such client or otherwise than as required by any law for the time being in force;

(2) certifies or submits in his name or his firm a report of an examination of cost accounting and related statements unless the examination of such statements has been made by him or by a partner or an employee in his firm or by another cost accountant in practice;

(3) permits his name or the name of his firm to be used in connection with an estimate of cost or earnings contingent upon future transactions in a manner which may lead to the belief that the vouches for the accuracy of the forecast;

(4) expresses his opinion on cost or pricing statements of any business or any enterprise in which he his firm or a partner in his firm has a substantial interest unless he discloses the interest also in his report;

(5) fails to disclose in a cost or pricing statement a material fact known to him which is not disclosed in a cost or pricing statement but disclosure of which is necessary to make such statement not misleading;

(6) fails to report a material mis-statement known to him to appear in a cost or pricing statement with which he is concerned in a professional capacity;

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

(8) fails to obtain sufficient information to warrant the expression of an opinion or makes exceptions which are sufficiently material to negate the expression of an opinion;

(9) fails to invite attention to any material departure from the generally accepted procedure of costing and pricing applicable to the circumstances;

(10) fails to keep moneys of his client in a separate banking account or to use such moneys for purposes for which they are intended.

PART II PROFESSIONAL MISCONDUCT IN RELATION TO MEMBERS OF THE INSTITUTE GENERALLY REQUIRING ACTING BY A HIGH COURT

A member of the Institute whether in practice or not shall be deemed to be guilty of professional misconduct if he –

(1) contravenes any of the provisions of this Act or the regulation made thereunder;

(2) is guilty of such other act or omission as may be specified by the Council in this behalf by notification in the Gazette of India.

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