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Tax practitioners law required for india ?

(Querist) 07 November 2014 This query is : Resolved 
(1) It was clearly held by the Hon’ble Supreme Court in the case of Bar Council of India Vs A.K.Balaji [SLP(Civil)No(s)17150-17154/2012] Dt.4.7.2012 (SC) upholding the Madras High Court judgment in the case of A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) that Advocates alone are entitled to practice the Profession of Law both in litigious & non-litigious matters, nullifying the effect of Section 33 of The Advocates Act,1961. This also confirms to Section 29 of The Advocates Act,1961.


(2) 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 Dtd.25.09.2014, it was also held that Non-Advocates to represent party to an appeal before NTT, unconstitutional and unsustainable in law. On date, appearance clause under all Indian taxation statute has been subject to review of apex court. If such appearance clause still retained in statute books of Indian taxation laws, situation may arise that orders of the assessing authorities passed against the representations of other than Advocates will become in-fructuous, bad in law, null & void. Further, such orders cannot be enforced and / or appealed.




(3) Latest policy decision of the learned officials in Finance Ministry to expand the definition of “Accountant” to include related professionals in DTC-2013 is most welcome move. But, in order to give full effect for the same, Tax Practitioners Law is most essential for India to enable other than Advocates also to practice exclusively in taxation laws in India. Our esteemed Central Govt. must come out with subordinate legislation; introduce Tax Practitioners Bill covering all five class of tax law professionals of India (Viz.Legal Practitioners, Chartered Accountants, Cost & Management Accountants, Company Secretaries and Income-Tax Practitioners). Such Tax Practitioners Bill should be introduced with “Preamble” stating that “other than Advocates are also practicing exclusively in the line of tax laws in India, in order to protect them & also in the interest of Govt. revenue, this Tax Practitioners Bill has been introduced”. Then such Tax Practitioners Law cannot be struck down in view of the above court verdicts. Treasury Department Circular No.230 for regulations governing practice before the Internal Revenue Service of Income-Tax Deptt. in USA & Tax Agent Service Act of Australia are very good examples for kind consideration of Ministry of Finance, Government of India to have similar Tax Practitioners Law in India also, to generate tax professionals for widening genuine tax base of assesses.


(4) Due to latest court verdicts on practice of law, India is badly in need of Tax Practitioners Law. Among Legal Practitioners, Cost & Management Accountants, Company Secretaries, Chartered Accountants and Income-Tax Practitioners, who wants to practice tax law in India, should mandatorily seek registration under Tax Practitioners Law, whatever their parent body says is immaterial & Tax Practitioners Law should recognize the qualifications acquired by all the five class of tax professionals. On date ample tax compliance work is there, but there is no required Tax Professionals to support voluntary compliance in Indian taxation laws. Further, “More persons in the line of tax practice more revenue to the Government”.

(5) Tax Practitioners Law in the lines of “US Treasury Circular No.230” is well suited to India, required for India & also need of the hour to widen genuine tax base of assesses. “Tax Practitioners Law, if brought in India, will generate self employment with added advantage of increased revenue collection”. I/We hope that Ministry of Finance, Govt. of India will consider this suggestion/representation, which is in the interest of Govt. revenue & all five class of Tax Professionals of India.
Devajyoti Barman (Expert) 07 November 2014
Unfit query.
Post this in Forum.
BSKRAO (Querist) 07 November 2014
Advocate Barman Sab give reasoning to say unfit query
BSKRAO (Querist) 07 November 2014
US Treasury Circular No.230 is the Tax Practitioners Law, regulating all Tax Professionals in United States of America. Limited appearance of persons other than Attorney’s/Advocates before Internal Revenue Service of Income-Tax Authorities in USA provided in Clause No.10.3 read with exception Clause No.10.32 of US Treasury Circular No.230. Exception Clause No.10.32 reads as under:-

“Nothing in the regulations in this part may be construed as authorizing persons not members of the bar to practice law”
BSKRAO (Querist) 07 November 2014
REPLY OF BARMAN SAB NOT CONVINCED
BSKRAO (Querist) 07 November 2014
ADVOCATE BARMAN SAB, RECONSIDER YOUR VIEW ON THE ISSUE OF TAX PRACTITIONERS LAW IN INDIA. BECAUSE, OTHER THAN ADVOCATES ARE ALSO PRACTICING TAX LAW IN INDIA
ajay sethi (Expert) 07 November 2014
you can submit your representation to Govt of india
BSKRAO (Querist) 07 November 2014
Advocate Ajay Sethi Sir, you have not answered my query to resolve
BSKRAO (Querist) 07 November 2014
OPINION OF SUPREME COURT OF NEW JERSEY, U.S.A - LAWYERS/ADVOCATES CAN PRACTICE BOTH LAW & PUBLIC ACCOUNTS.......

The court must have had some kind of vision of the professional world converging in the future, for as early as 1964, it set rather interesting ground rules into place for the cross-employment restrictions of Legal and CPA professionals. In Opinion 23 (January 9, 1964), the court was asked: “May a member of the Bar of New Jersey engage in the practice of law in this State simultaneously with the practice of public accounting?” In response, the court’s opinion states:----------

“.....we find that the dual practices of law and accounting … by lawyers would not violate the Cannons of Professional Ethics. Nor does it appear to us that any other rules of our Supreme Court would be violated by such dual practices....”

In the above situation, why non-lawyers be allowed to practice taxation law in India with the protection of tax practitioners law.
Rajesh Thakker (Expert) 08 November 2014
Dear BSK,

You have written in favor of other than advocate class who are appearing to day under the various taxation laws (Direct and Indirect) before the adjudication authority on the basis of power of attorney.
The Constitution bench of Horn'ble Supreme Court had given his historical verdict in the case of Madras Tax Advocate Association vs Union of India and ors that the appearance of the CA class is unlawful as well as unconstitutional. Once it is declared unconstitutional under the NTT Act, same is also applicable to similar provision in other Act also.
You are well aware of law and also knowing that your suggestion require amendment into constitution, which is not possible for CA class or any other class. Therefore, I hope that now you will not discuss about your dream act in future at any platform.
BSKRAO (Querist) 08 November 2014
LIMITED APPEARANCE BEFORE REVENUE AUTHORITIES SHOULD BE ALLOWED TO OTHER THAN ADVOCATES PRACTICING TAXATION LAW. TAX PRACTITIONERS LAW REQUIRED TO PROTECT THEM FROM SUCH ACTION U/S 45 OF ADVOCATES ACT (IE, IMPRISONMENT OF 6 MONTHS). IF NOT ANY BODY CAN MAKE A COMPLAINT TO POLICE STATION FOR TAKING ACTION U/S 45 OF ADVOCATES ACT ON FURNISHING THE AUTHENTICATED COPY OF ASSESSMENT ORDER WHEREIN NAME OF SUCH PERSON RECORDED BOTH IN THE PROCEEDINGS SHEET & THE ASSESSMENT ORDER.
BSKRAO (Querist) 12 November 2014
NOW A DAYS MEMBERS OF ICAI (FINANCIALS) WANTS TO BECOME CA, CMA, CS, ADVOCATE & ENGINEERS FOR VALUATION ALSO. THIS IS NOT A GOOD INDICATION FOR INDIAN ECONOMY. EVEN CMA DATA ARE SIGNED BY CAS. ICAI (COST & MANAGEMENT) SHOULD TAKE ACTION IN THE MATTER. IN TOTAL EACH & EVERY ACTION OF ICAI (FINANCIALS) INDICATES THAT IT IS FALLING IN DISREPUTE. THE EAGLE EMBLEM OF ICAI (FINANCIALS) IS SELF EXPLANATORY

Rajesh Thakker (Expert) 12 November 2014
Dear BSK,
What is limited appearance? When Constitution Bench held the appearance of other than Advocate is unlawful and unconstitutional, then how it is possible? To amend the Constitution for this purpose? Why Advocate gives his right to other Class ? Can CA class agree to give audit work to other class? Can doctor agree to give operation work to Aruved doctor ? Can civil engineer agree to give work labor contractor ?
T. Kalaiselvan, Advocate (Expert) 12 November 2014
Expert Mr. Rajesh Thakkar has properly addressed your query by giving a valid reply to the same. this should convey you the meaning, moreover expert Mr. Ajay Sethi has suggested you to represent before the Union government, so without wasting any more time on this portal, you may look for some steps to be taken in this regard if you are so much interested in the welfare of CAs etc in particular and country's revenue in general.
BSKRAO (Querist) 13 November 2014
ONCE THE ICAI (FINANCIALS) ALLOWED TO SIT IN YOUR HOUSE, YOU CAN NOT INVITE YOUR RELATIVES TO YOUR HOUSE. THIS IS THE POSITION OF MINISTRY OF FINANCE & THINKING ABOUT IT TO RESOLVE THE ISSUE SMOOTHLY. THIS IS A LESSON FOR OTHER GOVT. DEPTT. & MINISTRY AND SHOULD THINK ABOUT IT BEFORE ACTING ON REPRESENTATION OF ICAI (FINANCIALS)


BSKRAO (Querist) 13 November 2014
ICAI (FINANCIALS) IS SPREADING ITS WING IN THE AREA OF OTHER RELATED PROFESSIONALS. IT IS RIGHT TIME WE THE RELATED PROFESSIONALS SHOULD JOIN HANDS & WORK HARD TO RETAIN OUR IDENTITY BEFORE THE PUBLIC & GOVERNMENT - I HOPE THAT CMA/CS/ADVOCATES THROUGHOUT INDIA WILL CONSIDER MY REQUEST & SUPPORT THE MISSION


BSKRAO (Querist) 14 November 2014
Advocates alone are entitled to Practice, Plead and Act before the revenue authorities

(1) When the Deptt. is taking so much of security measure for filing the tax returns by way of Assesses Digital Signature Certificates etc., person filing the return in the capacity of Individual, HUF and Artificial Juridical Person should only produce records in support of return filed against response to the notices 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 act again for the same assesse in proceedings before revenue authorities. If their explanations are required they may be called by way 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-fructuous, 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.

(5) In the above situation, it is prayed before Ministry of Finance, Govt. of India to delete Authorised Representative clause from all Indian taxation statute book to uphold the decision of Apex Court & also to avoid contempt action


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