Sunday, August 24, 2014

Scrapping the RTO setup, and Protest by RTO Agents - An interesting Saga in the Making

This Saga been waiting for years to happen, and now its started. 
 
Finally someone realised that its time to Scrap or amend the Motor Vehicles Act 1988. The Union Minister makes a statement, and the protectorates under the MV Act start running for cover. This Act has spawned innumerable Corrupt Officers and their Handmaids/Manservant - Agents, who together run a parallel RTO setup in the country, though not in unison, but on similar lines.

Remember the KamalHasssan starring Movie "Indian" in Tamil, or "Hindustani" in Hindi??

The story runs on two tracks. One is that of Chandra Bose alias Chandru (Kamal Haasan), a small-time broker outside the RTO (Regional Transport Office) who gets people to high positions by accepting bribes. He is supported in this work by Subbiah (Goundamani). Paneerselvam (Senthil) plays an officer in the RTO who has conflicts with Subbiah. Aishwarya (Manisha Koirala) and Chandru are in love with each other. Sapna (Urmila Matondkar) is the daughter of Gandhikrishna, an officer in RTO. Her father promises to get Chandru a job of being a brake inspector in the RTO, if he runs errands for them. He agrees to work for them, and soon he becomes a brake inspector.
The other track is of Senapathy alias Indian (Kamal Haasan), a 70-year-old man who kills top government officials (like Commissioners of Corporation etc.) in an extreme attempt to weed out corruption from Indian soil.
Thats about the EXTANT of corruption in the Regional Transport (Authority) Offices in the Indian Soil.

Now for the news....
 
After axing the Planning Commission of India, it seems that the Narendra Modi government will soon scrap the Regional Transport Offices (RTO) and replace them with an alternative system in the coming months. 
 
Union Minister of road transport and highways Nitin Gadkari while delivering the JS Karandikar memorial lecture in Pune said that the central government was in the process of bringing in a law to scrap the outdated Regional Transport Offices (RTO). He said, "There are some outdated laws and systems which need to be scrapped. Systems like RTOs will soon be abolished; there is no need for RTOs. We have prepared a law which will be introduced soon to replace RTOs." 
 
At RTOs, corruption has become a way of life Corruption has become an everyday phenomenon in RTOs and this has led to the word 'bribe' being replaced with ‘service charge,' and further encouraging the back-door policies. 
 
The future plan - alternative for RTOs Revealing more about the future plan of scrapping RTOs, Gadkari said that a new system will be employed with the help of the traffic models in the UK and other countries to nab the traffic violators. 
 
Not only the RTO offices even the RTO officials create a lot of problems for the public. In January a non -government organization (NGO) based in Thane had alleged that at the border check posts, the number of heavy carriage vehicles are underreported which in turn caused multi-crore losses to the state exchequer. 
 
Unless the middlemen (the agents) are eliminated and more people are appointed, corruption cannot be weeded out from these RTOs. Thus, it seems this plan to scrap these Regional Transport Offices will be in country's favour. 
 

The Association of RTO Agents, a body with 300 members who offer their services to Mumbaikars inside and outside the Mumbai RTO office in Tardeo, has decided to protest if such a move comes into being.

Ilyas, the head of the RTO Association, said, "We serve Mumbaikars charging a nominal sum. We make sure people get relevant documents on time. If the Central government is planning to scrap RTOs, where will we go and what will happen to our business and our families? We will definitely protest against this decision, if it gets implemented."

Agents in Mumbai countered Gadkari's argument of outdated computerisation, saying it is nothing but a strategy to make money for RTO officials. 

At the Tardeo RTO office, Ramesh Patel has been running pillar to post to renew his licence. "For the last two months, I have been trying to renew my driving licence. You can see this receipt given to me two months back. But till today, no RTO official is willing to give me the renewed licence or even not ready to give me a new date. I wasted my entire day today, but no one has an answer."

When asked if he had gone through any agent, he replied, "Why should I? These agents will take a good amount from me for just renewing my old driving licence. Why are these RTO officials here?"
Source: http://indiatoday.intoday.in/story/gadkari-regional-transport-offices-wrong-notions-mumbai/1/377865.html


Union Road Transport and Highways Minister Nitin Gadkari on said that the government will introduce the Motor Vehicles Amendment Bill in the next Parliament session.

“The Bill, being prepared in sync with practises in six advanced nations – USA, Canada, Singapore, Japan, Germany and the UK will be introduced in the next session of Parliament. This will overhaul the sector bringing to an end the corrupt practises in RTOs,” Gadkari said.

The Act has become obsolete in the present context and needs overhaul, he said, adding the new law is designed in a way that will provide permits online besides slapping fines on violators of traffic rules on the basis of recordings in camera.

“The new law will provide a corruption free and transparent system with a proper record of driving licenses. Data would be utilised in e-governance. International norms are there for vehicle design, pollution control on the basis of prevalent laws in six advanced nations – US, Canada, Singapore, Japan, Germany and UK, I have firm faith that the new law will end corrupt practises in RTOs through e-governance,” he said.


Friday, August 22, 2014

Forensic Accounting - A Career Option


Forensic Accounting Beginnings

The term "forensic accounting" was first used in 1946 by Maurice E. Peloubet, a partner in a New York accounting firm. He wrote about the use of accounting in courtroom proceedings as part of testimony, but acknowledged that investigation was becoming more prevalent for accountants due to the increase in government agencies that regulated financial practices. Journals began to publish articles about the connections between law and accounting. In 1953, a New York lawyer named Max Lourie claimed that he invented the phrase "forensic accounting," although Peloubet wrote about it first. Lourie stressed the need for forensic accounting literature and training.

Forensic accounting service has been the growth industry in the 1990s. Called the private eyes of the corporate culture, forensic accountants must have an investigative mentality. A normal accountant acts like a watchdog, but a forensic accountant must be trained to act like a bloodhound. They look behind the facade and do not accept financial records at their face value.

Forensic Accounting

"Forensic" means "suitable for use in a court of law", and it is to that standard and potential outcome that forensic accountants generally have to work.

“Forensic accounting” is the practice of utilizing accounting, auditing, and investigative skills to assist in legal matters. Forensic accounting is the specialty practice area of accountancy that describes engagements that result from actual or anticipated disputes or litigation.

Forensic accounting is the application of accounting principles, theories, and disciplines to facts or hypotheses at issue in a legal dispute, and encompasses every branch of accounting knowledge.

There are two major aspects within forensic accounting practice -
1. Litigation support services that represent the factual presentation of economic issues related to existing or pending litigation. In this capacity, the forensic accounting professional quantifies damages sustained by parties involved in legal disputes and can assist in resolving disputes, even before they reach the courtroom. If a dispute reaches the courtroom, the forensic accountant may testify as an expert witness.
2. Investigative services that make use of the forensic accountant’s skills, which may or may not lead to courtroom testimony. It is the act of determining whether criminal matters such as employee theft, securities fraud (including falsification of financial statements), identity theft, and insurance fraud have occurred. As part of the forensic accountant’s work, he or she may recommend actions that can be taken to minimize future risk of loss. Investigation may also occur in civil matters. For example, the forensic accountant may search for hidden assets in divorce cases. An important criterion is the ability to respond immediately and to communicate financial information clearly and concisely in a courtroom setting. A forensic accountant must be open to examining all alternatives, scrutinising the fine details and at the same time seeing the big picture.
Forensic accounting can involve the application of special skills in accounting, auditing, finance, quantitative methods, certain areas of the law and research, and investigative skills to collect, analyze, and evaluate evidential matter and to interpret and communicate findings.

Application of Principles of Forensic Accounting to an organisation
• One premise of forensic accounting is to look for indications of abnormal occurrences in the accounting and financial reporting systems.
• Having a forensic accounting orientation to designing the accounting processes will provide an opportunity to design in steps for verification of key assumptions and data while also providing the opportunity for identifying possible fraud.
• The related area of forensic auditing can help in reducing the transaction processing risk by helping to perform audit type procedures on a routine schedule.
• Timely performance of audit type procedures can help management and internal audit function be more effective by helping to identify and resolve potential internal control breakdowns quickly and thoroughly. It can reduce external audit costs by regularly completing testing procedures that are part of the annual certified audit.
• In instances where information processing systems cover a broad array of businesses and/or locations establishing routine or continuous monitoring of all transaction processing systems, it can be considered as a type of forensic accounting.

Some of the areas that the principles and activities of forensic accounting can apply in an organization include:
• Reviewing operational transactions for compliance with standard operating procedures and approvals.
• Completing analysis of financial disbursement transactions in the accounting system to determine if they are normal or outside company policy and, thus, possibly fraudulent.
• Reviewing general ledger and financial reporting system transactions for possible improper classification or manipulation of data or accounts and its impact on the resulting financial reports.
• Examining warranty claims or returns for patterns of fraud or abuse.
• Helping estimate the economic damages and the resulting insurance claims that stem from calamities such as fires or other natural disasters.
• Evaluating or confirming business valuation in mergers and acquisitions.

 Forensic Accountants - The Bloodhounds of Book-keeping

 Forensic accounting requires the most important quality a person can possess: the ability to think.
There is no book that tells you how to do a forensic investigation. It is about solving a puzzle or peeling an onion. It takes creativity.
All of the larger accounting firms, as well as many medium-sized and boutique firms, have specialist forensic accounting departments. Within these groups, there may be further sub-specializations: some forensic accountants may, for example, just specialize in insurance claims, personal injury claims, fraud, construction, or royalty audits.

Forensic accountants may be involved in recovering proceeds of crime and in relation to confiscation proceedings concerning actual or assumed proceeds of crime or money laundering. In the United Kingdom, relevant legislation is contained in the Proceeds of Crime Act 2002. In India there is a separate breed of forensic accountants called Certified Forensic Accounting Professionals. Some forensic accountants are also Certified Fraud Examiners, Certified Public Accountants, or Chartered Accountants.

Forensic accountants utilize an understanding of business information and financial reporting systems, accounting and auditing standards and procedures, evidence gathering and investigative techniques, and litigation processes and procedures to perform their work. Forensic accountants are also increasingly playing more proactive risk reduction roles by designing and performing extended procedures as part of the statutory audit, acting as advisers to audit committees, fraud deterrence engagements, and assisting in investment analyst research.

The forensic Accountant is a bloodhound of Bookkeeping. These bloodhounds sniff out fraud and criminal transactions in bank, corporate entity or from any other organization’s financial records. They hound for the conclusive evidences. External Auditors find out the deliberate misstatements only but the Forensic Accountants find out the misstatements deliberately. External auditors look at the numbers but the forensic auditors look beyond the numbers.

Forensic accountant takes a more proactive, skeptical approach in examining the books of Accounting. They make no assumption of management integrity (if they can assume so then there is no need for their appointment) show less concerns for the arithmetical accuracy have nothing to do with the Accounting or Assurance standards but are keen in exposing any possibility of fraud.

In addition to the specialized knowledge about the techniques of finding out the frauds one needs patience and analytical mindset. One has to look beyond the numbers and grasp the substance of the situation. It is basically the work of the intelligent accountants. He needs to question seemingly benign document and look for inconsistencies. He searches for evidence of criminal conduct or assists in the determination of, or rebuttal of, claimed damages.

Who needs Forensic Accountants

Forensic accountants are more than just number crunchers who happen to work on criminal or civil disputes -- these accountants possess additional skills. They must conduct investigations, know how to use a variety of computer programs and communicate well. Some forensic accountants specialize in specific industries that are susceptible to fraud, such as insurance or banking, and learn the business practices associated with those fields.
Forensic Accountants work in most major accounting firms and are needed for investigating mergers and acquisitions, and in tax investigations, economic crime investigations, all kinds of civil litigation support, specialized audits, and even in terrorist investigations.
Forensic Accountants work throughout the business world, in public accounting, corporations, and in all branches of government.

Forensic Accounting in India

Forensic accounting is unique in that it combines accounting with investigation. These bloodhounds— as opposed to the watchdogs that are auditors— attempt to sniff out fraudulent transactions from the financial records of banks and companies.
Sherlock Holmes was probably the most famous practitioner But Kautilya was the first economist who openly recognized the need of the forensic accountants. He mentioned forty ways of embezzlement centuries ago.

The Opportunities for the Forensic Accountants are growing at the rapid speed. Collapse of Enron and World Trade Centre twin towers have blessed the American Forensic Accountants with the opportunities.
Forensic accounting is still nascent in India. However, the nature of fraud in India has undergone a change. Reserve Bank of India has made forensic accounting audit compulsory for banks in India. However banks are hesitant in approaching certified fraud examiners, and are mostly dependent on their internal auditors.
In India the formation of Serious Fraud Investigation Office is the landmark creation for the Forensic Accountants. Growing cyber crimes, failure of regulators to track the security scams, series of co-operative banks bursting - all are pinpointing the need of forensic accounting, irrespective of whether we understand the need or not.

In the Indian context the Forensic Accountants are the most required in the wake of the growing frauds. After the Satyam scam, forensic auditors are much in demand as many companies want to understand what could be the initial warning signals of a Satyam kind of fraud in other Indian companies. Even the government’s Serious Fraud Investigation Office (SFIO) has sought the help of forensic accountants to get to the root of the financial fraud at Satyam.

How to become a Forensic Accountant

Commerce graduates can easily take up forensic accounting as a career. You need to become a chartered accountant and then specialise in forensic accounting. The forensic accountants prior audit and accounting experience will be of tremendous assistance. But ultimately, it is only through working with experienced forensic accountants on various cases that one can learn the skills necessary to become a capable forensic accountant.
There are several organizations that provide training and additional certification for forensic accountants. Each organization requires that its members possess varying degrees of education and experience, and they must sit for additional exams. These certifications show that a forensic accountant has training and experience beyond that of a standard accountant.

 Some places where one can study and/or obtain certifications as Forensic Accounting Professional are:
• Institute of Chartered Accountants of India, New Delhi
• Association of certified fraud examiners (ACFE), USA
• Indiana University, Bloomington, USA
• British Columbia Institute of Technology, Canada
• Charles Stuart University, New South Wales, Australia

Some forensic accountants take courses in:
• Sociology
• Psychology
• Law enforcement
• Criminal law
• Business law
• Business and finance
• Information systems
• Communication

Conclusion

Forensic accountants are trained to detect evidence of frauds. Forensic accounting is about more than legal matters and financial numbers. There is an acute shortage of forensic accounting skill sets in India. A huge demand for forensic accountants has come up in the wake of the requirements from the investors after the Satyam fiasco. There are only about 400 forensic accountants in the country though India loses approximately $40 billion because of frauds.


Author - Rajkumar S. Adukia
Senior Partner, Adukia & Associates, Chartered Accountants
Mumbai 400 058
Email rajkumarfca@gmail.com

Source - Forensic Accounting - 
http://www.caclubindia.com/articles/forensic-accounting-20172.asp#.UzRcBPmSxhY

Wednesday, August 20, 2014

Competition law violations get personal | Business Standard

Competition law violations get personal
Directors and senior officers could be now fined for the anti-competitive conduct of their companies
Avirup Bose

The Competition Commission of India (CCI) has upped the ante on competition law compliance by Indian companies. Now a director or a senior officer incharge of the affairs of a company may be held personally liable for anti-competitive conduct of the company. The company may be penalised separately for such anti-competitive conduct.

The CCI in a recent order against Bengal Chemist and Druggist Association (BCDA) not only penalised the association for its anti-competitive conduct but additionally held 78 of its senior officers to be personally liable for taking/endorsing such anti-competitive conduct of the BCDA. The aggregate fine imposed on the BCDA and its officers was approximately Rs 18.38 crore (out of which the amount of fine imposed upon the BCDA was a mere Rs 13.24 lakh). The BCDA case marks the first instance when the infringement of competition law by a trade association triggered action against its senior officers.

Under the Competition Act, the term "company" includes a partnership firm or a trade association. Thus, the provisions of the Competition Act under which the BCDA officers were held personally liable are equally applicable to directors and senior officers of a company or the managing partner of a firm. Therefore, from now on directors and senior officers of a company are equally vulnerable to such liability.

At the core of an anti-competitive conduct by a company is a decision of a director and/or its corporate officers to pursue such an anti-competitive conduct. A company cannot remain in compliance with rules of competition law if its corporate officers either willingly or unknowingly adopt corporate practices that are anti-competitive in nature or willingly ignore their commitment towards competition law compliance programmes. A survey conducted by Deloitte in 2007 revealed that one of the top-most incentives for senior management to comply with competition rules are sanctions that operate at the individual, as opposed to corporate, level. Section 48 of the Competition Act provides such an incentive by rendering directors and other officers who are in charge of the affairs of the company to be personally liable, where their actions result in the company falling foul of the rules of Indian competition law.

In the BCDA case, the CCI found, among other things, that the trade association engaged in issuing anti-competitive circulars directing its member-retailers not to give any discount to consumers and to sell drugs only at their MRP, thereby indirectly determining the sale prices of drugs and controlling or limiting the supply of such drugs in the market. The CCI found such practices of the BCDA to be anti-competitive in nature and violative of the provisions of the Competition Act. The CCI also identified: (a) senior officers of the BCDA who were directly responsible for the BCDA to adopt such anti-competitive practices; and (b) members of the BCDA's executive committee who ratified such decisions. The senior officers and the executive committee members were penalised at the rate of 10 and seven per cent of their annual salary/receipts for the preceding three years, respectively.

The law does not expect the directors or the senior management of a company to be experts in competition law. However, they should be aware of the basic rules, which will allow them to manage and avoid the risk of a competition law infringement.

It is pertinent to note that since offences under the Competition Act are not criminal in nature, the CCI may hold directors personally liable for offences committed by their corporations based solely on circumstantial or indirect evidence. There is, however, a silver lining. The Competition Act provides that directors and senior officers may avoid liability through a "due diligence defence". This would require them to demonstrate that an anti-competitive act occurred despite there being an appropriate competition law compliance programme in place, which consisted of proper controls and systems, or without their knowledge. The due diligence defence relies more on the process that the directors or senior officers followed than on the result. Therefore, if the directors "inform" themselves before making a decision - for example, if they approve the merger of the company with a competitor after due discussions, asking the appropriate questions and seeking advice from experts - they may be able to use the due diligence defence to avoid personal liability, even if their decision produces results that contravene Indian competition law. The CCI would usually not second-guess the business judgement of a company's directors where they have followed the proper procedure in reaching their business decisions.

In the BCDA decision, the CCI did not have an opportunity to address the issue of personal liability of an independent director for the company's anti-competitive conduct, since the decision dealt with the anti-competitive conduct of a trade association that typically does not have any independent board members. In my opinion, executive directors are more likely to be held liable for anti-competitive acts of a company than independent directors because they usually have decision-making responsibilities and a supervisory role over the company's business on an ongoing basis. However, even an independent director may be held liable if s/he knowingly endorses an anti-competitive conduct of the company.

Source:

Monday, August 18, 2014

Karwar Express and Kannur Express - Confusion creating Railways Penalised

Railways fined for confusing passenger

The same locomotive pulls 16523 Karwar and 16517 Kannur till Mangalore


Same engine pulls trains to both Karwar and Kannur; confused passenger missed train and sued Railways in consumer court


A train with two destination names confused a passenger and he failed to board it. He was to board the Karwar Express (night train) but the first half of the train's coaches had boards identifying it as the Kannur Express. It was only when the train was moving that he noticed that the last few coaches were marked as Karwar Express. After missing the train, he filed a complaint with the consumer forum in Bangalore which has held the Railways responsible for deficiency in service and confusing passengers and fined it. This has come as yet another instance of the confusion created by the Railways to use the same locomotive to pull the trains to Kannur and Karwar till Mangalore, from where they are separated to head to their respective destinations.


Anup Nair, a resident of Thippasandra, filed the complaint last year on October 28. He had purchased a ticket to travel from Bangalore to Byndoor Mookambika Road (the railway station used by those heading to the Mookambika temple) on August 31, 2013, to perform a ritual called the 'Vidyarambh' at the Mookambika temple. He claimed to have reached the City Railway Station one hour in advance before the train was to depart at 8.40 pm. At the enquiry counter, he was told that the train would depart from platform number 10. Anup says he checked the display chart on the platform and that too showed train No. 16523 Karwar Express, along with train No. 16517 Kannur Express.


A train arrived at 8.20 pm on platform 10, and the digital signboard indicated it as 16517 Kannur Express. Even the coaches on the train had boards that read Kannur Express. Anup verified his ticket to confirm that it said Karwar Express. The complainant said he checked the TVs installed on the platform and found they were either showing only advertisements, or were not working. The train on the platform began to move and as it left the station, Anup noticed to his dismay that some of the coaches at the end had boards which said Karwar Express.


Anup could not board the moving train. Later he came to know that both the Kannur Express and Karwar Express were pulled by the same engine. When he confronted the officials, he was refunded Rs 465 out of the ticket fare of Rs 945.


In the consumer court, the Divisional Manager of South Western Railways claimed that Karwar Express left Bangalore City Railway Station at the scheduled time of 8.40 pm and there was no delay. Since the display showed Karwar Express too, the consumer was not misled. He claimed that "train No 16523 Karwar Express and 16517 Kannur Express leave as a single formation from Bangalore to Mangalore, where they are bifurcated. The coach position is disseminated through a public announcement system and electronic display boards. Hence, there was no reason for the complainant to presume that the train would come late... "


The court in its order, said: "The facts clearly goes to show that there was no proper display at the railway station on platform No.10 clearly stating that both Karwar Express and Kannur Express are one and the same, and there was no separate display of the train number of Karwar Express on that platform....That led to confusion to the complainant. In our opinion, the contention of the complainant is acceptable because when two trains are departing from the same platform and pulled by the same engine, the opposite party ought to have displayed in the digital sign board the train numbers and the names of both the trains, and not doing so leads to confusion to passengers." The court directed the Railways to refund Rs 480 to Anup along with a compensation of Rs 5,000, and another Rs 2,000 as litigation cost.


LONG-LASTING CONFUSION

The confusion over the two trains from Bangalore to Karwar and Kannur is a creation of the Railways. Ever since the metre gauge track between Bangalore and Mysore was converted to broad gauge, there was a demand to introduce a night train to Karwar. The first train (on the broad gauge) was introduced between Bangalore and Mangalore, but it was extended to Karwar in 2009. It would have been a long distance train running entirely within Karnataka. However, the train was later extended to Kannur in Kerala. Then came a High Court order directing the train to Karwar. The Railways bifurcated the train. While a few coaches were extended to Karwar, and the others continued towards Kannur.
Meanwhile, from Independence Day this year, the Railways has decided to shift the origin point of Yeshwantpur Kannur/ Karwar Express to Bangalore City Railway station (Majestic) instead ofYeshwantpur. The reason? Kannur Express was creating confusion even at the Yeshwantpurstation. Passengers who used to board the train at Yeshwantpur (the originating point) were caught between two Kannur Express' which used to start from the same place and at almost same time! To avoid confusion about the two 'Kannur' trains (16527 and 16517) leaving Yeshwantpur at almost the same time, the combined Karwar/Kannur Express is now starting from the City RailwayStation, instead of Yeshwantpur station