Advocates alone are entitled to Practice, Plead and Act before revenue authorities
(1) When the Deptt. is taking so much of security measure for e-filing of tax returns through only Assesses Digital Signature Certificates etc., person filing the return in the capacity of Individual, HUF and Artificial Juridical Person should only appear & produce records in support of return filed, against notice issued by the Deptt.
(2) Indian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Therefore, authorised representative clause not required in any Indian taxation statute. Bar Council of India Vs A.K. Balaji [SLP(Civil)No(s)17150-17154/2012] Dt. 4.7.2012 (SC) & A.K. Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) it was clearly held by Hon’ble Supreme Court and Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious and non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act.
(3) The constitution bench of Supreme Court of India in National Tax Tribunal case of Madras Bar Association Vs Union of India bearing No.150 of 2006 Dt. 25.09.2014, it was ultimately held that Chartered Accountant & Company Secretaries to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. In the instant case of Apex Court, it was also held that “In our understanding, Chartered Accountants and Company Secretaries would at the best be specialists in understanding and explaining issues pertaining to accounts”. Further, Chartered Accountants conducting Tax Audit for Revenue can not appear & act again for the same assesse in proceedings before revenue authorities. If explanations from Tax Auditor (CMA/CA/CS) required, they may be called upon by issuing summons under CPC/Evidence Act only. Because, all the procedures laid down in Civil Procedure Code followed in the course of proceedings before revenue authorities requiring only Advocates to appear on behalf of assesses.
(4) On date, authorized representative clause under all Indian taxation laws has been subject to review of apex court and hence require deletion. If such appearance clause still retained in statute book of Indian taxation laws, situation may arise that order of assessing authority passed against the representation of other than Advocates become in-fructose, bad in law, null & void. Further, such orders cannot be enforced / appealed. Power of attorney (Vakalatnama) to practice law can only be given to Advocates.
(Author :- B.S.K. RAO, B.Com, LL.B, MICA, BDKRAO, Beside SBI, Tilak Nagar, Shimoga-577201 Karnataka State, MO: 9035089036, E-Mail : raoshimoga@gmail.com)
(1) Even ignoring latest SC verdict on practice of law by only enrolled Advocates, only Legal Practitioners and Reg. Income-Tax Practitioners are accountable to Income-Tax Deptt. on date for professional negligence. As Legal Practitioners are licensed to practice all Indian laws under Advocates Act and Reg. Income-Tax Practitioners are specially licensed to practice Income-Tax Act, only these two class should be treated as Tax Professionals and allowed to appear before Income-Tax Authorities on preparation and filing of Income-Tax return on behalf of assesses with special login in e-filing portal of Income-Tax Deptt.
ReplyDelete(2) Accountant neither licensed to practice law to enable his/her professional body to take action for professional misconduct on the directions of Income-Tax Deptt. U/s 288(5)(a) nor the Income-Tax Deptt. could disqualify him/her for professional negligence. This incurable virus in the statute book of Income-Tax Act, require deletion of appearance clause for Accountant in Section 288(2)(iv) of Income-Tax Act
This comment has been removed by the author.
ReplyDeleteIndian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Section 29 of Advocates Act, specifies that Advocates alone are entitled to practice the profession of Law & Section 33 of Advocates Act specifies that Advocates alone entitled to practice the profession of law before any Court or before any authority or person. Bar Council of India Vs A.K.Balaji [SLP(Civil)No(s)17150-17154/2012] Dt.4.7.2012 (SC) & A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (HC) it was clearly held by Apex Court & Madras HC that Advocates alone are entitled to practice the Profession of Law both in litigious and non-litigious matters. Therefore, appearance clause not required in statute books of any Indian laws. In the interim order of BCI Vs A.K.Balaji Dt.04.07.2012, Apex Court upheld the view of Madras HC that Indian Advocates alone entitled to practice law both in litigious & non-litigious matter and reserved the decision on the issue of foreign lawyers or law firms to visit India for temporary period on a “fly in and fly out” basis to advise their clients on the foreign law and diverse international legal issues. They are however not permitted to practice Indian Law, either in relation to litigation or advisory matters, unless they qualify and enroll as Advocates and fulfill the requirements of the Act & Rules. The verdict of Supreme Court is declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution and contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution.
ReplyDeleteThe constitution bench of Supreme Court of India in National Tax Tribunal case of Madras Bar Association Vs Union of India bearing No.150 of 2006 Dt.25.09.2014, it was ultimately held that Chartered Accountants & Company Secretaries to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. In the instant case of Apex Court, it was also held that "In our understanding, Chartered Accountants & Company Secretaries would at the best be specialists in understanding & explaining issues pertaining to accounts & it fall purely within the realm of facts". Chartered Accountants conducting Tax Audit for Revenue can not appear & act again for the same interested assesse in proceedings before Revenue Authorities (Due to Conflict of Interest). If explanations from Tax Auditor required, they may be called upon by issuing summons under CPC/Evidence Act only. Because, all the procedures laid down in Civil Procedure Code followed in the course of proceedings before revenue authorities requiring only Advocates to appear on behalf of assesses.
ReplyDeleteLegal profession in India governed by Advocates Act and the disciplinary rules and regulations, code of conduct and professional ethics framed & practiced from time to time. There is also a hierarchy of disciplinary authorities such as the State Bar Council, Bar Council of India, Supreme Court, etc. These authorities can exercise their disciplinary authority/control only over the Advocates who are on the Rolls maintained under the Advocates Act. Any person who is not subject to disciplinary control of the above said authorities if allowed to practice the profession of law, he/she would go scot-free and would not be subject to the supervision and the disciplinary jurisdiction of the above said authorities. Professional misconduct in the course of appearance for Pleading & Acting (Practice of Law) before the Revenue Authorities purely covered under Advocates Act read with Bar Council of India Rules in India. I.e, only Bar Council in India issued license to enrolled Advocates (Legal Practitioners) to practice law in India & take action for professional negligence in the course of Pleading & Acting. Chartered Accountants neither licensed to practice law to enable his/her professional body to take action for professional misconduct against the directions of Income-Tax Deptt. U/s 288(5)(a) nor the Income-Tax Deptt. could disqualify him/her for professional negligence. This incurable virus in the statute book of Income-Tax Act, require deletion of appearance clause for Accountant Section 288(2)(iv) of Income-Tax Act..
ReplyDelete