As probe digs deep, financial professionals take extra precautions: 2G scam
May, 19th 2011
As the 2G probe lifts some carefully woven corporate veils, a fear is starting to grip many finance professionals and chartered accountants. The investigation, which is keeping some senior professionals behind bars, has raised serious questions that accountants, corporate lawyers , auditors and structured finance wizards are grappling with.
These men cobble together smart structures and often take a technical view to transactions to help companies side-step the law and overcome regulatory hurdles. For years, that has been the way of life.
But now, central investigative agencies and courts are going beyond the structures and deals to look for criminal intent - a turn of events that most professionals were not prepared for. More and more of them are taking extra care to make sure they are not pulled up for shady deals of their clients.
"I have stopped giving advice over e-mails," said a senior chartered accountant based in Mumbai. In the past, he helped several real estate firms obtain foreign investment for ventures that did not meet FDI norms. "I found structures where money first came into manufacturing firms and subsequently was routed to real estate ventures... It was my professional advice to bypass Fema and FDI strictures. But I don't know how the money was used later. There are many such cases," he said.
Such concerns often have elements of grey: if the corporate implementing the structure is caught in a scam, is there a chance the professional who advised him years ago will be hauled up for 'abetment of crime'? Or whether a structure/transaction is outright illegal or simply smart planning within the corners of law? According to Amarjit Chopra, past president of the Institute of Chartered Accountants of India (ICAI), there are no easy answers.
"Consultants will have to use their judgement to identify barriers that should not be crossed. They have to decide what kinds of risk can be taken. Layering of transactions for tax planning is one thing, but it can be dramatically different if such transactions are allegedly used to pay bribes or violate a law," said Chopra.
Some take a more cut and dried view of things whenever a client walks into their chambers. "If I feel a structure is illegal, I refuse to advise, and make it explicitly clear that it's in violation of such and such law," said Anup Shah of chartered accountants firm Pravin P Shah & Co.
"But even firms which work on structures that appear legally compliant but are just an eyewash are being extra cautious to distance themselves from clients," he said. For instance, the advice may be given on plain sheets of paper, and never on the firm letterhead.
"While there is concern in certain circles, one must remember that the degree of involvement is different between an employee and an external advisor, between a full-time employee and a consultant," said H Jayesh, founder partner of law firm Juris Corp.
But while employees who are executing a transaction are far more responsi-ble and have greater involvement than external consultants who are advising, external professionals are nonetheless worried about the angle and direction of investigation. Even if the professionals, cur-rently in judicial custody, are never convicted, the trauma of an ar-rest, harsh media glare and the reputational damage that may fol-low are thoughts that have unnerved many.
"Abetment and com-plicity may not be proved later. But there's fear that immediate ac-tion can be taken, and professionals may be picked up for interroga-tion," said an ICAI council member. The rapid-fire action on the 2G probe has resurfaced certain issues that auditors face every few years.
"If money flows from one company to another and eventually goes to a firm connected to a minis-ter, can the auditor deny knowledge of such multiple pass-through transactions?" asked a senior partner of a reputed audit firm. "Well, the auditor can take a view that such a loan is like any inter-corporate deposit. The point is whether he should question, why is it happening?
Is it a genuine commercial transaction? Can the auditor deny knowledge (of the client's intention)?" he asked. Re-sponding to queries on whether some of these issues could crop up for discussion when the institute council meets in June, ICAI Presi-dent G Ramaswamy said it is "a serious issue, (on) which we have to draw a line to understand the work carried out as a professional and an employee of any organisation".
A cross-section of profes-sionals ET spoke to felt it was time to lay down the dos and don'ts that could ringfence their reputations and help them avoid trouble later.