The National Company Law Tribunal (NCLT) Monday reserved its order in the ministry of corporate affairs (MCA) plea seeking five-year ban for IL&FS Financial Services auditors - Deloitte and BSR Associates.
After hearing arguments of the auditors and the MCA, the tribunal comprising of VP Singh and Ravikumar Duraisamy reserved the order.
Deloitte Haskins & Sells and BSR Associates, which is an affiliate of KPMG, are no longer the auditors of crippled IL&FS group, with the former resigning in FY18 and the latter as recent as last month.
But the corporate affairs ministry has sought a five- year ban on them for their failure to do the statutory job properly while they were auditing these group companies.
Representing Deloitte, Janak Dwarakadas, last week, had argued that section 140 (5) of the companies act, under which the MCA was seeking to ban them for five years applied only to auditors who are still auditing the company and not for those who had already resigned.
Also, if the alleged fraud that the auditors have been accused of is proved and the tribunal passes a final order, then automatically the auditors will get barred from the business of auditing, he had said.
However, the SFIO investigation report based on which the MCA has asked for banning them is only an interim report and it doesn't establish fraud.
It is a mere allegation which can't be the basis of banning any auditor, they said.
BSR counsel Darius Khambata, however, said the auditors can be tried under section 447 of the companies act 2013 which establishes the grounds under which a fraud can established and if found guilty then they can be penalized or barred for a maximum of 10 years.
And, he said, MCA can proceed with their plea under section 447 if they are confident of proving fraud.
Countering these arguments, ministry's counsel Sanjay Shorey said once there is an allegation of fraud, consequences will follow. An auditor cannot be absolved of the consequences of his past omissions and commissions in the name of "interpretation", he added.