Supreme Court paves way for prosecution of 2 ex-IL&FS audit firms

New Delhi, May 4, 2023

The Supreme Court on Wednesday set aside the Bombay high court verdict which had quashed the SFIO probe against audit firms BSR & Associates and Deloitte Haskins & Sells, both former auditors of IL&FS Financial Services, over alleged financial irregularities.

Allowing the appeal of the Serious Fraud Investigation Office (SFIO) and the Centre against the high court verdict, the top court also upheld the validity of section 140(5) of the Companies Act, 2013.

The provision deals with removal and resignation of auditors and imposes a five-year ban on an auditing firm that is proven to have "acted in a fraudulent manner", or to have "abetted or colluded in any fraud".

"The challenge to the constitutional validity of section 140(5) of the Companies Act, 2013 fails and it is observed and held that section 140(5) is neither discriminatory, arbitrary and/or violative of Articles 14, 19(1)(g) of the Constitution of India, as alleged," a bench of justices M R Shah and M M Sundresh said in its 103-page judgment.

It set aside the high court judgment which had quashed the proceedings against the audit firms under section 140(5) of the Act on the ground that the auditors had resigned. "The application/proceedings under section 140(5) of the Act, 2013 is held to be maintainable even after the resignation of the concerned auditors and now the NCLT (National Company Law Tribunal) therefore to pass a final order on such application after holding enquiry in accordance with law ...," it said.

[The Times of India]