In a setback to GSM operators, who have been demanding that auditor CAG be stopped from vetting their account books, tribunal TDSAT today said it had no powers to intervene.

Four leading operators, Bharti Airtel, Vodafone, Tatas and RCom, besides state-run company BSNL, have been asked by the CAG to submit their accounts books for the last three financial years to ensure that they were paying what is due to the government in terms of licence fee.

The private operators, who were earlier subjected to a special audit after the government observed some irregularities related to fee payments, have been saying that CAG has no jurisdiction to audit the accounts of private operators and hence moved the tribunal.

Declining to grant any interim relief to the petitioners (private operators), the TDSAT said: "The power of CAG is an independent one flowing from a statutory rule and not out of a contract qua contract."

As per the TRAI Act, 2002, the accounts of private operators can be audited by CAG and the same was also incorporated in the licences of these players.

The operators had prayed for quashing of this order as also the one by Department of Telecom (DoT), directing them to submit their books to CAG.

CAG, however, said that it was not auditing the books of accounts of the private telecom service providers per se, but only those records which are related to the determination of their adjusted gross revenues to determine whether the share of revenues being paid by them to the government was correct.

Hence, in effect, CAG is auditing the receipts of the DoT which are payable to the consolidated fund of India to certify itself that the government is getting its due shares of revenues from these private service providers, it added.

The judgment quoted Tata Teleservices raising several constitutional issues in regard to validity of the said rule under which CAG can audit the books.

It said: "The recent communication of DoT asking us to provide our accounting records for period of three years starting from 2006-07 for an audit by the CAG is a matter of surprise and concern for us.

"We submit that a fresh audit so closely on the heels of the special audit by DoT appointed independent auditor is unwarranted and will result in duplication of efforts, time and waste of resources," it said.

The provisions of the CAG Act, 1971, which set out the duties and powers of the CAG pertains only to the audit of accounts of the Union or the States or Government Companies or Corporations. The audit of accounts of private companies such as ours is not a part of duties and powers of the C&AG, one of the petitions said.

Tatas said that "It is therefore requested that while DoT can call for our books of accounts, the audit of those does not fall with the purview of the CAG."

While rejecting their plea for interim stay, TDSAT admitted their petition.