Advocate Rajnish R. Singla
In order to discuss, Advocates is the only recognized class of persons entitled to Practice the profession of Law. It will be imperative to go through the Advocates Act, 1961, The Indian Power of Attorney Act, 1882 and The Constitution of India.
The relevant provisions of The Advocates Act, 1961 are as follows –
Section -29 Advocates to be the only recognized class of persons entitled to practice law- Subject to the provisions of this Act and rules made there under, there shall, as from the appointed day, be only one class of persona entitled to practice the professions of law, namely, advocates.
Section -30 Right of advocates to practice- Subject to the provisions of this Act, every advocate whose name is
entered in the (State roll) shall be entitled as of right to practice throughout the territories to which this Act extends-
In all Courts including the Supreme Court;
Before any tribunal or person legally authorized to take evidence: and
Before any other Authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
Section -33 Advocates alone entitled to practice- Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.
Section- 45 Penalty for persons illegally practicing in courts and before othe authorities. Any person who practices in any court or before any authority or person, in or before whom he is not entitled to practice under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.
Famous Latin maxim of natural justice is-absolute sententia expositore non indigent: plain language does not need and interpreter.
It is evident from the bare reading of above provisions of the Advocates Act, 1961 that only and only Advocates enjoy the privilege to practice the law.
The relevant provision of The Indian Power of Attorney Act, 1882 is as follows-
Section 2 – Execution under power- of- attorney.- The donee of a power- of- attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers- of- attorney created by instruments executed either before or after this Act comes into force.
Another famous Legal maxim of natural justice is expression unius est exclusion alterius; when there is express mention of certain things, then anything not mentioned is excluded.
Another famous Legal maxim of natural justice is Dura lex sed led; “the law is hard but it is the law”.
The Hon’ble Madras High Court full Bench has held in the case of M. Krishnammal v/s T. Balasubramania- reported in AIR-1937-Madras, page no. 937 of which the relevant abstract are as under:
“In connection, we would add the following general observations with regard to what the claim put forward by the respondent really amount to. It is that he should be accorded all the rights and privileges which are enjoyed by members of the legal profession whose qualifications for admission to its rank are laid down in the rules made by the Bar Council with the sanction of the High Court, and whose professional conduct thereafter is regulated by rules of practice and professional etiquette and who are subject to the disciplinary control of the High Court, whereas the respondent need possess no qualifications whatsoever as regards education and character and is not bound by any rules of professional conduct or etiquette and is not subject to the disciplinary control of the High Court or of any one; and there can be no better example than this than this case itself affords of the highly objectionable result such a claim may lead to, and actually has led to here, because the respondent claims to be remunerated by his principal for his services in question and before us stated that the condition regulating his payment is that he is to receive it only if the result of the proceedings is successful but not otherwise. On his own admission, this is a transaction which, if entered upon by a legal practitioner, would at once render him liable to strong disciplinary action, for to engage in speculative litigation is a grave breach of professional conduct. Yet his claim is that he is free to undertake such business and this is only to undertake such business and this is only one example of probable resultant evils.”
The aforesaid judgment of the Madras High Court has been considered in the case of T.C. Mathai v/s Distt. And session judge -1999(3) S.C.C. -614 by the Honorable Supreme Court and approved.
“Section 2 of the power of attorney Act cannot override the specific provision of a statue which requires that a particular act should be done by a party in person. When the code requires the appearance of an accused in a court it is no compliance with if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the code empowers the magistrate to dispense with “the personal attendance of the accused, and permit him to appear by his pleader” if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispends with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case.”
The Gujarat High Court has also considered the judgment of Madras High Court as above during the course of hearing in the matter of Jaymal Thakore v/s Gujrat State Charity Commissioner, Ahmedabad and others – reported in AIR-2001- Guj. 279.
“D.M. DHARMADHIKARI, C.J. :- The petitioner is a Chartered Accountant and in his professional capacity claims a right to represent his clients both as “recognised agent” and a “Pleader” under a duly executed power of attorney in his favour in proceedings before the Charity Commissioner under Section 50A of the Bombay Public Trust Act, 1950 (hereinafter referred to as ‘the Act’) which admittedly is applicable to the State’ of Gujarat.
14. “The provisions of Order III Rule 1 and 2 repeatedly came for construction and application before law Courts in civil proceedings. For the purpose of this case reference to one of the earlier decisions of Chhagla C.J. in Aswin Shambhuprasad Patel v. National Rayon corporation Ltd., AIR 1955 Bombay 262 would be profitable. Construing the provisions of Order III Rule 1, it was held that the expression “appearance, application or act” in or to any Court in Order III Rule of C.P.C. does not include pleadings. The recognised agent under power of attorney from the party in his favour may appear, file an application or act on behalf of the party in the proceedings as “recognised agent” of the party. Such power or Authority to appear, file application and act is also available to a “pleader”, but to plead in the case, that is to do something for the party in the case other than what the ‘recognised agent’ can do, that is to practice law or plead for the client, is the monopoly right only of a pleader or a registered advocate, A ‘recognised agent’ appointed by a party may be holding a duly executed power of attorney cannot be said to be a ‘pleader’ and can have no right to plead, The provisions of Advocates Act, 1961 confers a monopoly right of pleading and practicing law only on enrolled or registered advocates. Section 30 of the Advocates Act confers such a right to practice on a ‘pleader’ and/or ‘advocate’ after he gets himself enrolled as such. Section 30 reads :-
“30.Right of advocates to practice.-Subject to the provisions of the Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the Territories to which this Act extends, –
(i) in all Courts including the Supreme court;
(ii) before any Tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.”
15. Section 33 of the Advocates Act confers an exclusive and monopoly right on the enrolled advocate or pleader to plead and practice in Court of law. The said provision contained in Section 33 reads :
“33. Advocates alone entitled to practise.-Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an advocate under this Act.
16. The provisions of Section 32 of the Advocates Act are also required to be noticed in this context which reserves a discretion and power to the Court only to permit appearances to any non-advocate for a party. It may be noted that Section 32 also does not confer any power and discretion on the Court to permit any non-advocate to plead or practice law in a Court. Section 32 restricts the powers of the Court to permit any non-advocate only to appear on behalf of a party. See the language of Section 32 restricts the powers of the Court to permit any non-advocate only to appear on behalf of a party. See the language of Section 32 quoted here under :
17. When the petitioner as a Chartered Accountant and a holder of power of attorney conferring on him all rights to act, appear and plead on behalf of his client sought such permission, the Charity Commissioner allowed him to act as a ‘recognized agent’, but refused to allow him to plead and practise as a pleader or an advocate. The relevant part of his order which is under challenge at the instance of petitioner in this case needs reproduction (as rendered in English) :
“For the reasons recorded as above. It is consequently ordered in the matter of enquiry application No. 1/92 filed in this office under Section 50 A of the Bombay Public Trusts Act, wherein the Chartered Accountant Shri Jaimal Thakore has appeared with the Authority letter and authority executed on stamp paper on behalf of six trustees of Nawawas Rajpur Hirpur Timba Education Trust which has been registered as a public trust under registration No. E/244/ Mehsana, that the authority to act as an advocate, besides appearing, which has been given under the document, there is no provision for any party to give authority to any individual other than an advocate to act as an advocate and since there is a provision under Rule 7 of the Rules framed undert the Public Trusts Act for an authorized agent and pleader to appear, he can appear on behalf of the six trustees for whom he has appeared, in this matter of enquiry but it is held that he does not thereby acquire a right to plead therein and therefore, Shri Jaimal Thakore himself can only appear on behalf of the said trustees and he, as the authorized agent acquires an authority to sign on behalf of the original parties; to submit reply and documents and to do the act of adducing evidence and he cannot do the act of taking examination in chief or cross-examination. Also he cannot address the authority i.e. the Charity Commissioner, before whom this proceeding is pending. It is held that he does not acquire the right of examining witnesses in Court and of addressing the Court as is being done by a pleader in a Court. This application is accordingly granted.
Further, for the reasons stated above, since this case does not become a special case wherein an individual can be granted permission to plead and address the Court in the manner in which a pleader can do by appearing, even though Shri Thakore has been authorized to act as a pleader in the authority letter executed in his favour, he is not permitted to appear for the purpose of conducting the matter.
Considering the facts, no orders as to costs. It is directed that this Application shall now proceed further.”
Apart from the above, the word “ to practice the profession of law” has been considered by The Hon’ble Mumbai High Court in the case of Lawyers Collective v/s Bar Council of India and others, writ petition no.1526 of 1995, order dated 16TH DECEMBER, 2009, reported in 2010 (112) Bom. L.R. 32. the relevant abstracts of the judgment are reproduced here under:-
“58. It may be noted that Rule 6(1) in Chapter III Part VI of the Bar Council of India Rules framed under section 49(1) (ah) of the 1961 Act provides that an advocate whose name has been removed by an order of the Supreme Court or a High Court or the Bar Council as the case may be, shall not be entitled to practise the profession of law either before the Court and authorities mentioned under section 30 of the 1961 Act, or in chambers, or otherwise. The above rule clearly shows that the chamber practise, namely, practise in non litigious matters is also within the purview of the 1961 Act.
59. Counsel for the Union of India had argued that the Central Government is actively considering the issue relating to the foreign law firms practising the profession of law in India. Since the said issue is pending before the Central Government for more than 15 years, we direct the Central Government to take appropriate decision in the matter as expeditiously as possible. Till then, the 1961 Act as enacted would prevail, that is, the persons practising the profession of law whether in litigious matters or non litigious matters would be governed by the 1961 Act and the Bar Councils framed there under, apart from the powers of the Court to take appropriate action against advocates who are found guilty of professional misconduct.
60. For all the aforesaid reasons, we hold that in the facts of the present case, the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under Section 29 of the 1973 Act. We further hold that the expressions ‘ to practise the profession of law’ in section 29 of the 1961 Act is wide enough to cover the persons practising in litigious matters as well as persons practising in non litigious matters and, therefore, to practise in non litigious matters in India, the respondent Nos.12 to 14 were bound to follow the provisions contained in the 1961 Act. The petition is disposed of accordingly with no order as to costs.”
This matter has been also considered by the Madras High court also in the case A.K. Balaji V/S Government of India, and others W.P. No.5614 of 2010, vide order dated 21-02-2012, the relevant abstracts of the judgment are reproduced here under:-
“44. As noticed above, the fact of the case before the Bombay High Court were that the respondents which were foreign law firms practising the profession of law in US/UK sought permission to open their liaison office in India and render legal assistance to another person in all litigious and non-litigious matters. The Bombay High Court, therefore, rightly held that establishing liaison office in India by the foreign law firm and rendering liaisoning activities in all forms cannot be permitted since such activities are opposed to the provisions of the Advocates Act and the Bar Council of India Rules. We do not differ from the view taken by the Bombay High Court on this aspect. “
“62. At this juncture, it is necessary to note yet another submission made by the Government of India in their counter. It has been stated that law firms as such or not required to register themselves or require permission to engage in non-litigation practice and that Indian law firms elsewhere are operating in a free environment without any curbs or regulations. It is further submitted that the oversight of the Bar Council on non-litigation activities of such law firms was virtually nil till now, and exploiting this loop hole, many accountancy and management firms are employing law graduates, who are rendering legal services, which is contrary to the Advocates Act. Therefore, the concern of the Government of India as expressed in the counter affidavit requires to be addressed by the Bar Council of India. Further, it is seen that the Government in consultation with the Bar Council of India proposes to commission a study as to the nature of activities of LPOs, and an appropriate decision would be taken in consultation with the Bar Council of India.”
63. After giving our anxious consideration to the matter, both on facts and on law, we come to the following conclusion :-
(i) Foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961 and the Bar Council of India Rules.
(ii) However, there is no bar either in the Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a fly in and fly out basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.
Moreover, having regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
The B.P.O. Companies providing wide range of customised and integrated services and functions to its customers like word-processing, secretarial support, transcription services, proof-reading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. However, in the event of any complaint made against these B.P.O. Companies violating the provisions of the Act, the Bar Council of India may take appropriate action against such erring companies.”
The judgment of the Hon’ble Bombay High Court has got it’s finality as no appeal has been moved before the Hon’ble Supreme Court against this order, Madras High Court has also taken the same view as of Bombay High Court on the “ to prctise profession of law” in litigious as well a non litigious matters, and has been held that without having enrolled with any State Bar Council under the provisions of the Advocate’s Act’ 1961, as mentioned finally at 63 (1) of it’s judgment.
The Hon’ble Supreme Court has also clarified in it’s interim order dated 04/07/2012 against the judgment of the Hon’ble Madras High Court where the point number 63 (ii) is only in dispute, which permits the foreign lawyers for advise to their clients on certain conditions, but not for practice, which is reproduced here under:- (ii) However, there is no bar either in the Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a fly in and fly out basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.
Thus, it is clear that that when an advocate of other country, who has not been got enrolled with State Bar Council of any State in India under the Advocates Act’1961, has not been permitted for “practice the profession of law” in India, then, why those persons who have not been enrolled as an advocate with Bar Council of any State in India are being permitted “to practise the profession of law”
The relevant provision The Constitution of India is as follows-
Article 141– Law declared by Supreme court to be binding on all courts- The law declared by Supreme court to be binding on all courts within the territory of India.
“It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is mandate of the Constitution as provided in article 141 that the law declared by the supreme Court shall be binding on all courts within the territory of India”, Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420: AIR 2002 Cri Lj 1003 : 2002 SCC (Cri) 344.
“The judicial discipline to abide by Supreme Court decision cannot be forsaken under any pretext by any authority or court, be it even High Court”, State of Himachal Predesh v. Paras Ram, AIR 2008 SC 930.
In view of the above legal position, it is crystal clear that no body, except an advocate who is enrolled with the State Bar Council, can argue a case before the Hon’ble Supreme Court, High Court, Tribunal, Appellate Authority, Assessing Authority, or person, and cannot practice the profession of law either in litigious as well as non litigious matters.
SIR, I AM RETIRED JOINT CHARITY COMMISSIONER .GUJARAT,I AM ENROLLED IN THE YEAR 1974 AS ADVOCATE IN GUJ BAR COUNCIL.I JOINED FIRST CLASS.2 POST AS ASST.PUBLIC PROSECUTOR AND THAN I JOINED AS CLASS 1 ASSISTANT CHARITY COMMISSIONER AND RETIRED ON 30/06/2005 AND SANAD WAS REISSUED TO ME IN THE YEAR OF JULY 2005 AND I STARTED AGAIN AS ADVOCATE PRACTICE AT THAT TIME I WAS NOT ALLOWED TO PRACTICE FOR 2 YEARS FROM WHERE I WAS RETIRED BUT THERE AFTER SOME RULE CHANGE IN THE YEAR OF 2007 AND THAN IN 2013 .RESOLUTION WAS PASSED BY BY CAR COUNCIL OF INDIA ON 14,2/2007 RESOLUTION 128/2007 AND THAN RESOLUTION 188/2013 OR 180/2013 AND AS PER MY SUBMISSION RESTRICTONS ARE NOT APPLICABLE TO ME AS I HAVE RESTATED MY PRACTICE IN THE YEAR OF JUY 2005 SO NO ANY NEW RULES ARE EFFECTED TO ME SO NEITHER BAR COUNCIL OF GUJARAT NOR INDIA HAVING RIGHT TO DISTURBED MY PRACTICE FROM ANY OF THE COURT OR AUTHORITY BUT GUJ BAR COUNCIL HAS RESTRICTED MY PRACTICE IN REFERENCE TO ABOVE BOTH RESOLUTIONS.PLEASE REPLY IN SUPPORT OF RELEVANT DOCUMENTS.
I AM PRACTISING CHARTERED ACCOUNTANT SINCE AUGUST 2006 AND REGISTERED MEMBER AS FCA (CERTIFICATE OF PRACTISE) AND I ALSO COMPLETED LLB IN YEAR 2013 AND I WISH TO ENROLL AS ADVOCATE IN MAHARASHTRA STATE BAR COUNCIL , WITHOUT SURRENDING MY CA (COP) DEGREE BECAUSE AS PER INSTITUTE OF CHARTERED ACCOUNTANT OF INDIA IT IS ALLOWED SUBJECT TO THE PERMISSION OF BAR COUNCIL
Reserve Bank of India’s (RBI) Banking Ombudsman Scheme puts restriction on dealing with the complaints by the advocates.
Please see relevant contents of clause no. 9 of the Banking Ombudsman read as “any person who has a grievance against a bank on any one or more of the grounds mention in clause 8 of the scheme may, himself or through his authorized representative (other than an advocate) make a complaint to the Banking Ombudsman within whose jurisdiction the branch or office of the bank complained against is located”.
In my view putting such restrictions by the RBI is contrary to the provisions of Advocates Act hence the matter need to be taken up with appropriate authority/forum.
In India Banking Ombudsman Scheme (BOS) is in operation for more than a period of 18 years. In this period many genuine complaints have been rejected by the Ombudsmen because these were not properly represented by the complainant (in the absence of knowledge of relevant statutes) whereas the banks have a team of legal personnel on their pay rolls. I am one of the sufferers.
Kindly take up the issue.
A.M. Deshmukh, Pune
IT IS ALSO NEED TO INVESTIGATION HOW CAN NON ADVOCATES COULD BE TAX PROFESSIONALS.
WHENEVER SECTION 2 & 32 OF CHARTERED ACCOUNTANTS ACT 1949 JUSTIFY THAT CHARTERED ACCOUNTANTS ARE ONLY PERFORM PRACTICE OF ACCOUNTANCY.
TAX SYSTEM IN INDIA IS A LAW & ONLY CLASS FOR LAW PROFESSION & TAX PROFESSIONAL ARE ADVOCATES.NON ADVOCATES COULDN’T BE TAX PROFESSIONALS.
CBDT & MINISTRY OF FINANCE NEED TO GIVE INTENTION ON THE MATTER.
mostly parts of income tax act 1961 are effected from politics.
section 288(2) is also gift of politics.
TAX PROFESSIONAL-CHARTERED ACCOUNTANTS is also effected from politics.
SECTION 44AB etc.
TAX SYSTEM IN INDIA IS GOVERNED BY VARIOUS LAWS & ONLY ADVOCATES ARE LAW PROFESSIONALS CLASS.
I AM SURPRISED CBDT & MINISTRY OF FINANCE WANTS TO CREATE ANOTHER LAW PROFESSIONALS CLASS IN FORM OF CHARTERED ACCOUNTANTS.
It is demand of time on national website name TAX PROFESSIONAL-CHARTERED ACCOUNTANTS should be changed as ACCOUNTING PROFESSIONAL- CHARTERED ACCOUNTANTS
FOR THIS EVERY PERSON NEED TO WRITE A LETTER TO CBDT & MINISTRY OF FINANCE TO CHANGE NAME AS ACCOUNTING PROFESSIONALS- CHARTERED ACCOUNTANTS.
Moreover, appearance before the sales tax authority may only be for the purpose of filing a return and producing documents in support of the return. A relative or an employee or an accountant or a sales tax practitioner can be asked to do this job by an assessee for and on his behalf. That does not mean that any one of the aforesaid Persons is practising the profession of law when he appears before the statutory authority and produces the accounts. He may even be called upon to explain the accounts or justify the entries made in the accounts books. There may be problems only of book-keeping and accountancy and nothing of law in such proceedings. Therefore, it cannot be inferred straightaway that because the sales tax practitioner has been given a right to appear before a statutory authority, he is practising the profession of law.
L.M. Mahurkar vs The Bar Council Of Maharashtra And … on 8 April, 1996
Equivalent citations: 1996 AIR 1602, JT 1996 (4) 224
. Such appearance by a lawyer or an accountant will be in the course of carrying on his profession of law or accountancy, as the case may be. It cannot be said that an accountant carries on the profession of law when he appears before the sales tax authority
After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase ‘practise the profession of law’ is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force.
MUKAMBIKA IS RIGHT THIS AUTHORITY JUSTIFY HIS COMMENT
Balamurugan Sir,
“Appearance” and “Practice of Law” are different & discussed by various High Courts & Supreme Court. This is what the author is trying to convey. Appearance clause provided in the statute is only to produce evidence in support of return filed only & not to prepare return, plead or file objections or written arguments on behalf of the assesses, which is the prerogative of Advocates. Even if “Appearance” leads to “Practice of Law”, liable for action U/s 45 of Advocates Act ie, imprisonment which may extend to 6 Months. This is what ultimately decided by latest verdict of SC & Madras HC in the case of Bar Council of India Vs. A.K.Balaji on clearing the ambiguity so as to litigious & non-litigious matters. This is what the crux of the matter.
Bombay High Court in Lawyers Collective v/s Bar Council of India, 2010 (86) A.I.C. 375 at pp. 390 ] held as under :
“In the Statement of Objects & Reasons for enacting the 1961 Act, it is started that the main object of the Act is to establish All India Bar Council and a common roll of the advocates and advocate on the common roll having a right to practice in any part of the country and in any Court, including the Supreme Court Thus, from the Statement of the Objects and Reasons, it is seen that the 1961 Act is intended to apply to (one ) persons practising the profession of law in any part of the country and (two) persons practising the profession of law in any Court including the Supreme Court. Thus, from the Statement of Objects and Reasons it is evident that the 1961 Act is intended to apply not only to the persons practising before the Courts but is also intended to apply to persons who are practising in non-litigious matters outside the Court.
Apart from the above, Sec. 29 of the 1961 Act specifically provides is that from the appointed day, there shall be only one class of persons entitled to practise the profession of law, namely advocates. It is apparent that prior to the 1961 Act there where different classes of persons entitled to practise the profession of the law and from the appointed day all these class of the persons practising the profession of law, would from one class, namely, advocates. Thus, Sec. 29 of the 1961 Act clearly provides that from the appointed day only advocates are entitled to practise the profession of law whether before any Court / authority or outside the Court by way of practise in non – litigious matter .
Section 33 of the 1961 Act is a prohibitory section in the sense that it debars any person from appearing before any Court or authority unless he is enrolled as an advocate under the 1961 Act. The bar contained in Sec.33of the 1961 Act has nothing to do with the persons entitled to be enrolled as advocates under Sec. 29 of the 1961 Act . A person enrolled as an advocate under sec. 29 of the 1961 Act, may or may not be desirous of appearing before the Courts. He may be interested in practicing only in non– litigious matter. Therefore, the bar under Sec.33 from appearing in any Court (except when permitted by Court under Sec. 32 of the 1961 Act or any other Act ) unless enrolled as an advocate does not bar a person from being enrolled as an advocate under Sec.29 of the 1961 Act for practicing the profession of law In non – litigious matters. The Apex Court has held that the right to practise is the genus of which the right to appear and conduct cases in the Court may be a specie. Therefore , the fact that Sec.33 of the 1961 Act provides that advocates alone are entitled to persons practising before any Court / authority it cannot be inferred that the 1961 Act applies only to persons practicing in litigious matters and would not apply to person practicing in non – litigious matters.
Section 35 of the 1961 Act provides punishment to an advocate who is found to be guilty of professional or other misconduct. The fact that Sec.45 of the 1961 Act provides imprisonment for person illegally practising in Courts and before other authorities. It cannot be said that the 1961 Act does not contain provisions to deal with the persons found guilty of misconduct while practising in non- litigious matters. Once it is held that the persons entitled to practise the profession of law under the 1961 Act, covers the persons practicing the profession of law under the 1961 Act, covers the persons practicing the profession of law in litigious matters as well as non-litigious matters, then, the penal provisions contained in a Sec. 35 of the 1961 Act would apply not only to persons practising in litigious matter, but would also apply to persons practising the profession of law in non- litigious matters. The very object of the 1961 Act and the Rules framed by the Bar Council of India are to ensure that the persons practising the profession of law whether in litigious matters or in non- litigious matters maintain high standards in professional conduct and etiquette and, therefore, it cannot be said that the person practising in non- litigious matters are not governed by the 1961 Act”.
Hon’ble Supreme Court in N. K. Bajpai v/s Union of India J.T. 2012(3) S.C. 354. “The Advocates Act, 1961 (hereinafter referred to as ‘the Advocates Act’) itself was introduced to implement the recommendations of the All India Bar Committee made in 1953. It aimed at establishment of an All India Bar Council, a common roll for the advocates and integration of the Bar into a single class of practitioners known as ‘advocates’. It was also to create autonomous Bar Councils, one for the whole of India and one for each State. The Advocates Act provides for various aspects of the legal profession. Under Sec.29 of the Advocates Acct, only one class of persons entitled to practice the profession of law, namely, Advocates. Section 30 of the Advocates Act provides that subject to the provisions of the Act, every advocate whose name is entered in the State rolls shall, as a matter of right, be entitled to practice throughout the territories to which this Act applies, in all Courts including the Supreme Court of India. Such an advocate would also be entitled to practice before any Tribunal or person legally authorized to take evidence and before any other authority or person before whom such an advocates is, by or under any law for the time being in force, entitled to practice, Section33 of the Advocates Act further states that except as otherwise provided in that Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an advocate under the Advocates Act. A bare reading of these provisions clearly shows that this is a statutory right given to an advocate to practice and an advocate alone is the person who can practice before the Courts, Tribunals, authorities and person. But this right is statutorily regulated by two conditions- one, that a person’s name should be on the State rolls and second. that he should be permitted by the law for the time being in force, to practice before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, the right to practice is not an absolute right which is free of restriction and is without any limitation. There are persons like Mukhtiars and other, who were earlier entitled to practice before the Courts, but the Advocates Act itself took away the right to practice which was available to them prior to its coming into force. Thus, the Advocates Act placed a complete prohibition upon the right to practice of those persons who were not advocates enrolled with the State Bar Council.
SIR
I THINK CA SHOULD BE AUTHORIZED FOR ALL INDIAN LAW INCLUDING IPC,CPC,CRPC,TORT,LAND LAW ETC. AS PER DEMAND OF MY CA FRIENDS FOR THE BENEFIT OF NATION.
I THINK ALL INDIAN CITIZENS SHOULD BE ALLOWED FOR PRACTICE OF LAW.
AS PER CA’S, AUDIT WORK SHOULD BE RESTRICTED TO THEM THEY ARE PROFESSIONAL FOR IT.
PRACTICE OF LAW SHOULD BE OPEN TO ALL.
PL TELL ADVOCATE PROFESSION IS NOT WORK OF SKILLED PERSONS.
PRACTICE OF INCOME TAX IS BASED ON SEVERAL OTHER LAWS. ONLY STUDY OF INCOME TAX ACT NOT AUTHORIZED OTHER PERSONS FOR PRACTICE OF LAW.
THANKS MR. BAJAJ FOR YOUR JOINING .
Rao ji,
This matter is already discussed in your article “Tax Audit in Income-Tax Act-Monopoly of Authority Causing Hurdle for Voluntary Compliance” and after not being able to justify your claim, you vanished from that article . Again you are making a claim here means, ——-> as mentioned in that forum by many people —> Go ahead and demand to the concerned ministry.
Section 33 containing the words “anyother law in force” is made by the Parliament and section 288(2) specifically empowers persons other thatn advocates to represent the assessees which shall be regarded as provision overriding the Advocates Act. Also, 44AB which you meant as interpretation of law specifically empowers only CAs to carryout the same. This shall also be covered as the overriding provision. The provision was introduced 2 decades after the introduction of Advocates Act. What were you doing at the time of passing of the said section?
The introduction of e-filing of tax audit report with the digital signature of the CAs is making the task very difficult for those who were involved in the scandal of using the CAs’ information without the concerned CAs’ knowledge. Thats why so many shoutings have come up in the recent past.
Talking about SC decisions, many of the decisions by the SC have been nullified by amending the Act in the parliament. Now you are coming in like the reverse charge mechanism.. based on SC verdict, trying to amend the Act passed by the parliament….What a funny contention by you and your supporters.
Coming to words mentioned in the sections of the Acts / verdicts of Supreme Courts, can anybody tell me which provision of the Act has empowered the advocates to indulge themselves in Street rowdism which were damaging the BCI’s name in the recent past.
LEGISLATURE PROVIDED SPECIAL CLASS OF PERSONS IN ADVOCATES ACT TO PRACTICE LAW AND HENCE APPEARANCE CLAUSE U/S 288(2) NOT REQUIRED IN INCOME-TAX ACT. IF STILL RETAINED, IT AMOUNTS CONTEMPT OF COURT. BECAUSE, IT IS PREROGATIVE OF ADVOCATES TO PRACTICE LAW. EVERY PROFESSIONAL SHOULD STICK ON TO THEIR AREA OF OPERATION & SHOULD NOT ENTER OTHERS AREA. I AM VERY MUCH SURPRISED TO SEE QUOTING CA’S AS TAX PROFESSIONALS IN E-FILING WEBSITE OF INCOME-TAX DEPTT. NOW, I HAVE TO VERIFY CA ACT TO SEE WHETHER LAW PRACTICE ALLOWED IN THEIR STATUE BOOK ? HOW LEARNED PEOPLE IN DIRECTORATE OF INCOME-TAX SUGGESTED TO QUOTE AS SUCH TO THE DEVELOPERS OF WEBSITE. IS IT NOT STRANGE ?
yes only advocate is the right person.
I agreed with the Mr. singhal adv. that only advocate is the recognised class of the paerson who can plead and appear before the court of law
Only the Union Parliament can rectify the situation by amending the Income Tax Act 1961 to amend the provision enabling CAs /ITPs to appear as Authorised Representatives.
Matter should be taken up with CBDT and CCITs of all states to prevent CAs to appear before the Tax Authorities including Hon.ITAT. Rajasthan Bar Council has taken up this matter with the respective CCIT.
Only Advocates can appear before the Courts – no question about it. But CAs are empowered to appear before the ITAT and the lower authorities>
Amit Bajaj Sab,
Here what I mean to say, by retaining Section 288(2) CBDT is allowing other than Advocates to breach the law declared by Supreme Court of India liable for action under Article 129 read with Article 142(2) of Indian Constitution. Even holding their appearance is required, they should appear under Evidence Act against notice U/s 131. They should not be allowed to practice Income-Tax law
I agreed with the mr. adv. singla ji he has correctoly interpretted with the many court rullings as well as Advocates Act that advocate is the only person who has plead and appeared before any court of law
Yes agreeing with you mr. Rao. Thats what i meant when i commented that section 288 allows CAs to be only authorized representative. They are not allowed to do any act which amounts to practice of law, as practice of law can be done by only advocates as per section 33 of advocates act. CAs should reprsent assessees only as an authorised agent in the capacity of a professionaly qualified accountant. They shouldnt be allowed to argue the legal points as they havent read the various important branches of law like constitution, evidence law, interpretation of the statues etc. Which are important for practising the law.
Amith Bajaj Sab,
If you read Rule 12A of Income-Tax Rules, 1962 along with Section 288 person other than Advocates are allowed to prepare return under Income-Tax Act & if you kindly go through the tax audit report format Form No.3CD, herein CA’s are allowed to interpret the the law. Both the these circumstances should be treated as practice of law & hence Section 288(2) require deletion from Income-Tax Act for which BCI should take action in the matter. I hope that you understood the situation. I have sent a mail in detail in the matter for your kind reference & latest action of BCI in the matter
I don’t agree,the ITP , STP and others representing the clients since severals years. The person who have full knowledge can plead the case and amendment must have made in relevant laws . National interest must be secured. It must not be treated as employment generation to limited class. My clear view any body can plead the case who have knowledge.
it is very true but ITAT Tribunal and other quasi judicial court how can other professional degree holder practice it is to be seen by the hon able apex court and do the needful for enforce the law in India how can other degree holder practice as a lawyer or authorize representative
No doubt section 33 of the Advocates Act provides the word “in any other law for the time being in force” But such words do not cover section 288 of Income Tax Act, 1961 as section 288 doesnot allow practice of law by a CA. It only allows CA to be authorised representative.
Section 288 of Income Tax Act, 1961 no where allows practice of law by a CA, so section 288 is not an exception to section 33 of Advocates Act
But Section 33 of the Advocates Act itself says it is subject to contrary provision in any other law.
Mr. Kabra
There is no doubt income Tax Act,1961 allow CA/ CS/ other legal representative but CA,CS and other acts gives power for specific purpose like audit etc.whether it is disobeying your parent law.
Does this mean that if a matter is before the Dy. Registrar of Co-op. Societies, and if the notice is given to the Chairman, he cannot give authority to Hon. Secretary who is not an advocate, to represent him. The Hon. Secy. is more knowledgable about the matter.
Sec 33 with the heading that advocates alone entitled to practice is made subject to this act or any other law for the time being in force, which means that if any other law provides otherwise than this section gets override to that extent. In the case of TAX LAWS CAs, CSs and ICMAs are allowed to act as authorised representatives. What the author has made out is only with reference to FOREIGN LAWYERS and not for other professionals of INDIA.
Following are the varied class of professionals provided by legislature to practice in the respective area of operation with specific demarcation:-
[a] Legal Practitioners in Advocates Act to practice law.
[b] Functions of Accounting are classified based on the area of operation:-
Cost Accounts : Manufacturing/Processing Activity
Financial Accounts : Trading Activity
Management Accounts : Ratio Analysis & preparation of Cash Flow
Statement on Cost & Financial Accounts
[i] Cost & Management Accountants in Cost Accountants of India Act
to practice both Cost Accounts & Management Accounts.
[ii] Chartered Accountants in Chartered Accountants of India Act
to practice Financial Accounts only.
[c] Company Secretaries in Company Secretaries Act to practice Secretarial
Work of Corporate Bodies.
Hence, the professionals mentioned above should not exceed their limit of demarcation. Even holding extension required, taking the case of Income-Tax Act wherein all the above professionals are authorized to prepare return, there should not be any discrimination like that of prevailing in Indian Income-Tax Act, which has lead to a situation of stagnation of tax base in India, which is not so in western country’s.
Advocate Rajnish R. Singla has correctly interpreted the provisions of law read with
Court Verdicts:-
Bar Council of India Vs. A.K.Balaji [SLP(Civil) No(s) 17150-17154/2012] it was clearly held by Hon’ble Supreme Court of India that Advocates alone are entitled to practice the profession of law both in litigious & non-litigious matters. This confirms to Section 29 of Advocates Act.
VERY TRUE
Section -33 of Advocates Act states that – “Advocates alone entitled to practice- Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.”
Those who are not advocates get the eligibility by means of the words “in any other law for the time being in force”. The Income-tax Act specifically provides for practice of law by virtue of the following section:
Section 288. (1) of Income tax Act – “Any assessee who is entitled or required to attend before any income-tax authority or the Appellate Tribunal in connection with any proceeding under this Act otherwise than when required under section 131 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, attend by an authorised representative.
6(2) For the purposes of this section, “authorised representative” means a person authorised by the assessee in writing to appear on his behalf, being—
(i) a person related to the assessee in any manner, or a person regularly employed by the assessee; or
(ii) any officer of a Scheduled Bank with which the assessee maintains a current account or has other regular dealings; or
(iii) any legal practitioner who is entitled to practise in any civil court in India; or
(iv) an accountant; or
(v) any person who has passed any accountancy examination recognised in this behalf by the Board7; or
(vi) any person who has acquired such educational qualifications as the Board may prescribe8 for this purpose; or
9[(via) any person who, before the coming into force of this Act in the Union territory of Dadra and Nagar Haveli, Goa†, Daman and Diu, or Pondicherry, attended before an income-tax authority in the said territory on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee; or]
(vii) any other person who, immediately before the commencement of this Act, was an income-tax practitioner within the meaning of clause (iv) of sub-section (2) of section 61 of the Indian Income-tax Act, 1922 (11 of 1922), and was actually practising as such.”
If people take a stand that Income tax Act is violation of Advocates Act or otherwise, then other people will also start claiming that Advocates Act is in violation of Income tax Act and hence the need for amending the Advocates Act..
The demand raised by the respective professional fraternity should be in the interest of the nation and not for abolition of a society, namely, CA/CMA/CS.
CA should be there to certify Tax audit report, CMA should be there for Cost audit report and CS for the secretarial compliance.