B.S.K. RAO

b-s-k-rao(1) Indian Legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Section 29 of Advocator Act, specifies that Advocator 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] 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.

(2) Legal 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 authority 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 “Practice of Law” 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 to practice law in India & take action for professional negligence. Chartered Accountants neither licensed to practice law to enable his/her professional body to take action for professional misconduct nor any out side agencies charge them for professional negligence.

advocate-logo

(3) Audit means verification, depending on the purpose they are classified as Energy Audit, Environment Audit, Product Audit, Process Audit, Pollution Audit, Legal Audit in USA & Tax Audit in Indian Income-Tax Act. Here, person conducting audit should be specialized in that particular Subject Hence, Audit in GST Law is the domain of Law Professionals. In conclusion, only person licensed to practice law in India should issue Audit Certificate under GST Law. If such authority for Appearance & audit given to Chartered Accountants, situation may arise that order of assessing authority in proposed GST Law, passed against the audit & representation of Chartered Accountant become in-fructuous, bad in law, null & void, as it amounts to passing of the order without giving an opportunity of being heard to the assesee. Further, such orders can not be enforced by the Deptt. to recover revenue demand raised.

A.K. Balaji Vs. Government of India

(2012) 35 KLR 290 (Mad.)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.02.2012

HEAD NOTE:-

Advocates Act, 1961 – There is no bar for foreign lawyers or law firms to visit India for temporary periods on a “fly in and fly out” basis to advise their clients on 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 and Rules. The activities performed by BPOs and LPOs do not constitute practice of law and hence do not conflict with the Act. The Bar Council of India may take necessary steps in relation to the practice of law by chartered accountants and management firms, which is contrary to the Act.

Bar Council of India Vs A.K.Balaii

IN THE SUPREME COURT OF INDIA
S. L. P. (Civil) No(s).17150-17154/2012
DATED : 04.07.2012

HEAD NOTE:-

In the meanwhile, it is clarified that Reserve Bank of India shall not grant any permission to the foreign law firms to open Mason offices in India under Section 29 of the Foreign Exchange Regulation Act 1973. It is also clarified that the expression “to practice the profession of law” under Section 29 of the Advocates Act 1961 covers the persons practicing litigious matters as well as non-litigious matters other than contemplated in para 63(6) of the impugned order and, therefore, to practice in non-litigious matters in India the foreign law firms, by S.L.P. (Civil) No(s).17150-17154/2012 whatever name called or described, shall be bound to follow the provisions contained in the Advocates Act 1961.

Madras Bar Association Vs Union of India

IN THE CONSTITUTION BENCH OF SUPREME COURT OF INDIA

National Tax Tribunal Case No.150 of 2006
DATED : 25.09.2014

HEAD NOTE:-

Keeping in mind the fact , that in terms of Section 15 of the NTT Act , the NTT would hear appeals from the Income Tax Appellate Tribunal and the Custom , Excise and Service Tax Appellate Tribunals (CESTAT) only on “Substantial Questions of Law”, it is difficult for us to appreciate the propriety of representation , on behalf of a party to an appeal , through either Chartered Accountants or Company Secretaries , before NTT. The determination at the hands of NTT is shorn of factual disputes. It has to decide only “Substantial Question of Law”. In our understanding, Chartered Accountants and Company Secretaries would at the best be specialists in understanding and explaining issues pertaining to accounts. These issues would, fall purely within the realm of facts . We find it difficult to accept the prayer made by the Company Secretaries to allow them to represent a party to an appeal brfore the NTT . Even insofar as the Chartered Accountants are concerned , we are constrained to hold that allowing them to appear on behalf of a party before the NTT , would be unacceptable in law . We accordingly reject the claim of Company Secretaries , to represent a party before the NTT . Accordingly the prayer made by Company Secretaries in Writ Petition (Civil) No. 621 of 2007 is hereby declined. While recording the above conclusion, we simultaneously hold Section 13 (1) , insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, unconstitutional and unsustainable in law .

Opinion of Supreme Court of New Jersey, USA

(Advocates can practice both law & public accounts)

HEAD NOTE:-

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….”

(Author is an Auditor & Tax Advocate and can be reached E-Mail: raoshimoga@gmail.com Mobile No. +91-9035089036)

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59 responses to “Appearance & Audit under GST Law Domain of Advocates”

  1. Rajendira kumar says:

    An advocate with additional knowledge/exposure/qualification are not suitably recognized. for Eg: though legal audit is emerging as a significant and challenging in the field of Banking and finance where in the CA have no much role to play, The Reserve Bank India is not granting license/registration like one given to the CA .

  2. g.giridhar says:

    Let BCI allow its members who are qualified CA’s to take COP and allow dual practice.

  3. g.giridhar says:

    CA institute is permitting dual practice it is only BCI is preventing its members from practising other profession. The BCI should allow its members who are qualified CA”s to take COP from ICAI to discharge attest functions. A doctor with MBBS degree is allowed to perform limited surgery whereas the same doctor with MS degree can perform surgery of patients in operation theatre . In the same manner the BCI should take a lenient view allow its members who possess CA/ CMA/ CS qualification to practice audit and attest function by obtaining COP from respective Institute’s it is only a furtherance of their professional function . In a more naked sense when a client approaches a CA or CMA for GST work he can perform both attest function and representative function to his client . Whereas an advocate can render only representative service . The professional world is marching towards one roof all services whereas BCI is restricting the ambit of its services by its members to four walls of the Representative service . it is not out of place to mention in earlier days it was only Advocates who were rendering services in company formation, filing IT Returns . The BCI has missed bus by not upgrading its curicullum to the present scenerio and retain their professional uniqueness . Because of the wrong policies of the BCI it is only Advocates have to face competition from other professionals of different domian. The advocates are not is competition to any other professional . With any specialisation courses in CPC And CrPC in future by separate institutes with the blessings of Parliment will attempt to bid a adieu to 3 century old the noble profession . The legal fraternity should think now!

  4. Tax.Adv.BSKRAO says:

    Law is the exclusive domain of Advocates but still other professionals are doing practice in Law, somewhere I have seen S.C said a clerk ( Who is Working in Court) is more knowledgeable than an advocate, but we can not call them as Advocate, hence Chartered Accountants may be good in their field like accounts & tax law. As CAs are not lawyer they can not do practice in Law.

  5. PRAKASH JOSHI says:

    With due respect, a humble submission.I am a law graduate as well as CS, so from my practical experience I can say it is true that no matter how much tough the course of CA and the course standards are, a CA can not match the legal knowledge, interpretation skills,drafting, presentation and advocacy skills of an advocate. But it is also true that all of these skills can be gained by with experience.The taxation matters constitute both accounting and legal issues. hence, all the professionals not only CA and Advocates but CS or ICWAs should be allowed to practice. I have a different opinion about retired officers of the departments an MBA, M.Com or a graduate.CA, CS or CWAs definitely have more rigourius study standards.A company Secretary is well tarined in legal,accounts and audit areas.
    There is enormous scope for all in taxation.

    • Tax.Adv.BSKRAO says:

      Prakash Joshua Sir, I do agree scope in Tax Law Practice, here the problem is how to practice Income-Tax law with 46 Plus CA certificates. This law makers should understand & delete all such certification inserted without accountability

  6. Tax.Adv.B.S.K.RAO says:

    Indian 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. Section 32 of Advocates Act provides for appearance of person not enrolled as Advocate only with the special permission of Court, Authority or Person in any particular case. Therefore, Authorised Representative clause not required in any Indian taxation laws. In view inserting Authorised Representative clause in all Indian taxation laws, persons not enrolled as Advocate are practicing Indian taxation laws in the guise of appearance till the stage of Appellate Tribunal. In fact, person not enrolled as Advocates are appearing before revenue authorities on own motion by the strength of power of attorney, that too against the notice issued to the clients. To sum-up Authorized Representative clause present in all Indian taxation laws have been misused by person not enrolled as Advocates resulting in un-authorized practice law in India.

  7. V.S.VANDAL says:

    it is right way to coveney to gst council and cbdt and goverment. THE BAR COUNCIL OF INDIA SAFE GUARD OF ADVOCATES RIGHTS.AND ADOCATES IS ONLY PERSON TO AUTORISED TO REPRESENT THE JUDICAL AND QUASI JUDICAL

  8. Paramjit singh says:

    CAs can not effectivly persue e assessee not even GST BUT under I tac law the procdeings under i tax and GST are quasi judicial proceedings, cA has no legal knowledge he is only passed the exam to do audit .the law is mis used , any advocate can do audit as well as litigation , cA can only obey law but adv is fully competent to interprit the law. I think the way of audit under income tax is nothing but a certification of accounts , adv are well educated for such certifications

  9. Sanjeev dhiman yamunanagar says:

    It is true that practice in GST law is advocate domain

  10. TAX ADVOCATE DEEPAK BAPAT, MUMBAI says:

    To,
    Mr Arun Jetly
    The Hon’ble Minister of Finance,
    Government of India,

    Sir,

    Sub: CA’s monopoly to practice under GST and other Tax Laws should be stopped

    I respectfully state that all the Ministers, MP’s, MLA’s and Judges in India are under wrong impression that only Chartered Accountants are in practice of taxation. Therefore, the taxation laws are being drafted only with the advice of Chartered Accountants working in various Government Departments or as the case may be with the advice of the Institute of Chartered Accountants of India.
    To do away the aforesaid misunderstanding, I bring to your kind notice, that under the Income Tax, Excise, Service Tax and Sales Tax Act, following professionals are allowed to prepare returns, statutory compliance etc. and to attend before the Officers & Tribunals in every proceeding under the Act:
    Advocates
    Sales Tax Practitioners(Commerce graduates and retired officers of the Sales Tax Department)
    Income Tax Practitioners(Commerce graduates and retired officers of the Income Tax Department)
    Retired Officers of the Excise Department
    Chartered Accountants
    Cost Accountants
    Company Secretaries

    Under Section 35Q of the Central Excise Act, there is no concept of Excise Practitioner or Service Tax Practitioner. However, the CA’s, Cost Accountants and retired officers of the Excise Department are allowed to appear before the Excise Officers & Tribunals as ‘Agent’ of the Tax Payer.
    To appear before the tax authorities is the domain of Advocates. Inadvertently or otherwise, you have kept the said area open for ‘Agents’ who are not Advocates. Contrary to aforesaid policy, you have reserved the right of Audit under Section 42(4) of the GST Act, only to CAs and Cost Accountants and the right of Income Tax Audit is reserved only for CAs.
    As stated in the beginning, because of unawareness of Politicians, they are treating CAs as supreme for practice of tax laws, though large number of Advocates are also successfully practicing under the tax laws. This unawareness resulted in introducing the provision of audit (only by CA) under the Income Tax and Sales Tax Laws. Once the CA is appointed as Auditor, the tax payer does not appoint the Advocate for the work of preparation of returns and attendance etc. Since 1983 i.e. after introduction of Audit provision under the Income Tax Act, large number of Advocates lost their cream clients and the new generation of Advocates is reluctant to practice on tax laws. The above situation, gave an opportunity to CAs to canvass that very few Advocates are practicing under tax laws.
    The number of Advocates appearing before the Income Tax, Sales Tax, Excise and Service Tax authorities is much more than Chartered Accountants. As the Advocates have played the important role for successful implementation of Income Tax, Sales Tax, Excise, Service Tax Law, we strongly suggest that, because of huge experience of an Advocates, they will be proved of immense help to the GST Department to increase elegitimate revenue if the right of Audit under Section 42(4) is granted to them.
    When the Sales Tax Practitioners Association of Maharashtra filed the Writ Petition to Bombay High Court seeking direction to the Government of Maharashtra for allowing the Advocates to certify the audit report under the Maharashtra VAT Act, the Court took the view that, being a matter of Government Policy it cannot interfere with the said policy decision. While dismissing the SLP filed against the aforesaid decision, the Supreme Court advised the Petitioners to approach the Ministers and not to Courts.
    Therefore, the Sales Tax Practitioners Association of Maharashtra, approached the Government of Maharashtra, for allowing Advocates to certify the audit report under the Maharashtra VAT Act. However, the Ministers and IAS officers for the reasons known to them refused to do so.
    As per Section 2 of the Chartered Accountants Act, any CA is supposed to practice only accounts and audit. However, by disregarding the aforesaid provision, CAs are carrying out other activities such as filing up the forms of returns under the Taxation Act, filing up the forms for license or registration certificate under Bombay Shops and Establishment Act, Public Trust Act etc. In number of cases, the High Courts and Supreme Courts have held that the Chartered Accountants cannot argue the cases under the Consumer Protection Act, Labour Act etc. Inspite of the above, CAs are arguing the cases before the appellate authorities and Tribunals. The above acts of CAs is the violation of Section 2 of the Chartered Accountants Act.
    The present Tax Laws and Section 86 of the GST Model Law allows CAs and other professionals(though they are not Advocates), to attend before the authorities & Tribunal in any proceeding. However, it is required to be taken into account that the said provision does not allow them to plead or as the case may be to practice such tax law, as if he or she is an Advocate. Inspite of that, large number of CAs are pleading before the tax authorities and thus carrying out the practice of law. The above action of such CAs is liable for criminal action under Section 45 of the Advocates Act.
    The aforesaid facts and circumstance makes it clear that large number of Advocates are practicing in the field of Sales Tax, Excise and Service Tax. The knowledge of accounts required for preparation of returns and for audit of accounts, is identical. The knowledge of accounts has the importance of only the facts of the case. Therefore, only because the CAs are conversant with accounts, they cannot claim supremacy in the practice of GST Law. As such, there is no logic in allowing only CA’s and Cost Accountants to conduct the audit of accounts under Section 42(4) of the Model GST Act.
    In fact, the term ‘audit of accounts’ is a misnomer. It creates an impression that being audit of accounts, it is the domain of only CAs. Therefore, the said term is required to be replaced by the words “Compliance Report’. As the provision of the said audit by CAs has created their monopoly, you are requested to stop the same for the reasons explained hereinbefore, by making suitable amendment to the GST Act.
    Moreover, the Government of India without the application of mind, introduced the scheme of ‘Tax Return Preparer’ vide Section 34 of the Model GST Act under which, any commerce graduate can prepare the GST return. The aforesaid provision of appointing Tax Return Preparers will result into creation of unqualified GST Practitioners. It is required to be taken into account that for preparation of returns under the Tax Law, the knowledge and practice under the said Act is essential. Only because such a person can operate computer and can make use of software for preparation and uploading of returns and various reports under the GST Act, there is no logic in appointing them as Tax Return Preparers. Hence the said provision is required to be removed.
    The provision of allowing a taxable person to be represented before the tax authorities by his relative or employee is also not logical. The permission to allow a litigant to appear in person before any Court should not be equated with the relative or employee. Therefore, only in exceptional circumstances, such permission should be granted.
    Under the circumstance, we suggest and request you to do the following:
    To amend Section 42(4) of the Model GST Act in such a manner that the term ‘audit of accounts’ should be replaced with the words ‘compliance report’ and the Advocates, Cost Accountants and Chartered Accountants be allowed to certify the said ‘compliance report’.
    To amend Section 86 of the Model GST Act in such a manner that a relative or regular employee of a taxable person cannot appear in any proceeding on behalf of a taxable person.
    To delete Section 34 of the Model GST Act which provides for Tax Return Preparers.
    To amend the Income Tax Act on the aforesaid lines.

  11. Axat Pareshkumar says:

    Respected All,

    All Tax Professionals are at the the mercy of Tax Collectors.

    Tax collectors are those who are registered to collect tax on behalf of Government. So, in that course they are agents of governments. We can call them Assessee, Dealers, Service Provider or anything.

    Tax professionals are at large are their Agents.
    Nothing Else.

    Government should think about It’s agents and their compliance cost.

    We know india is developing country and forign education like CA is in the developing mode.

    In many part of Our country we have very scarcity of CA Firm.

    In Gujarat we have identified several district where no any single CA Firm exists. Think about the Dealers from this area who will fall under the GST Audit Criteria.

    Do we expect within coming two or three years; ICAI will pass enough number of CA so that no part of India will feel scarcity of CA? Answer is simple NO.

    Then what will happen? High Compliance cost to dealers.

    Untimely and lethargic tax report will be submitted to Government. Any Government will also not able to trace its income – expenditure – refund in time.

    We also know that under Model GST Law; Section 49 exists. Which empower Government Authorities to do AUDIT. And no / very less government authorities are CA.

    Now think if Being a principal, Government will do AUDIT WORK BY NON CA and being Government’s agent Dealers must have to go to CA!!!

    There are numbers of tax practitioners in India; working as bridge between tax authority and trade and commerce since more then many decades. How government could say they are not capable to do some work they were doing since last 20-30 or 50 years!!!!

    Discussion may be long enough……

    But

    To may Advocate brother I only have one request that everything need calm approach and sobar attitude.

    Demanding AUDIT is not demand of our bread and butter; it’s demand for our SOCIO-ECONOMIC status and equality.

    Think about it. Think about the government; and try to convince It. They are responsive and sympathetic. Why they will have to discriminate?

    No lobby working to prove it’s substance. If you are having fear about some groups of CA’s. Take a break sir. They are extreamly busy with direct tax compliance and very few (maximum 10 to 20%) CA’s are 100% depending on indirect tax practice.

    And if we could go to Government and inform probability of hardship by this decision to Dealers as well as government. What’s the reason they will reject your prayer?

    Right could not be given to sleepers; right is only available for awared ones.

    Woke up and without any bias attitude against any Professional Body or Qualification- just approach government. You will “ALSO” get audit under GST Act.

    Best luck to all,
    Axat
    9898265111
    axat_vyas@hotmail.com

    • BSKRAO says:

      Preamble to formation of ATL, many hue & cry made by Adv. & TPs of AIFTP in every meeting of AIFTP to strongly represent before Govt. about Audit in Indian tax laws for limited purpose of Non-Corporate entities handled by Adv. & TP. In all meetings, the issues were set aside due to the strong apposition by CA members of AIFTP who were viewing us at foot level. Only in the tenure of M.V.K.Murthy Sir, it was taken up. Before that ATL was formed by its founder members G.N.Sharma, MandeepSingh, DeepakBapat, MaheshKoushik, RajeshTakkar, Rajesh Mahana, Ajay Sinha, Mukul Gupta, V.P.Gupta, Ashwini Acharya in the meeting conducted at Delhi Tax Bar Association Building on 7.05.2013. In that meting, I have brought the draft Memorandum & rules, it was finalised on reading each & every clause by Sinha Ji in the presence of Mahana Sab. In the same meeting it was also discussed to have separate Ass. for Tax Lawyers & TPs to claim our rights. By the grace of God I got the connection of one Tpr.Sridhar of Bellary to promote separate National Level body for TPs. He approached all TPs of India & finalised bylaw for Institute of Tax Practitioners of India & got it registered at B-Lore. This is the back story of Adv. & TPs well known to all founder members of ATL

  12. S L JOSHI says:

    Appearance & Audit under GST Law Domain of Advocates

    I would like to stress upon the role of Tax Practitioners in GST law, who are molded from Gross Root Level Few Glimpses of which are;

    One: Accountancy, which is mother of Audit and relevant taxation laws requires lots of patience. Having spent few years, the professional will have practical knowledge of difference between capital receipts & Revenue receipts.

    Two: Book keeping will give the understanding of direct expenses and indirect expenses, which in turn help in understanding costing, value addition and deduction towards Labor charges etc. Under relevant acts/rules.

    Three: Through one of the objects of VAT Act was to eliminate personal interface, in practice nothing is moving right from Registration, Amendment, Assessment, Rectification to the Appeal without personal appearance & liasoning. This is state of administration & fact in practice.

    Four: with so much patience and practical experience, dedication, discipline the professional prefix’s his name with Tax Practitioner. Inspite of which as Sridharji has rightly categorized him with a “ant” in this column as the profession is unorganized and unregulated.
    With enormous compliances involved in GST regime Tax Practitioners, numbering in lakhs are spread out in whole of the country even in remote areas, have important role to play. The government on its part, very much require vast human resources for successful implementation of the new tax regime. Therefore Executive shall come forward to legislate suitable law to unify, regulate Tax Practitioners which will be beneficial to them as well as to the government.

    S.L. Joshi

    28-10-2016

  13. SAMPATHLAL JOSHI says:

    Appearance& Audit under GST Law Domain of Advocates

    I would like to stress upon the role of Tax Practitioners in GST law, who are molded from Gross Root LevelFewGlimpses of which are;

    One: Accountancy, which is mother of Audit and relevant taxation laws requires lots of patience.Having spent few years, the professional will have practical knowledge of difference between capital receipts & Revenue receipts.

    Two: Book keeping will give the understanding of direct expenses and indirect expenses, which in turn help in understanding costing, value addition and deduction towards Labor charges etc.Under relevant acts/rules.

    Three:Through one of the objects of VAT Act was to eliminate personal interface, in practice nothing is moving right from Registration,Amendment, Assessment, Rectification to the Appeal without personal appearance& liasoning. This is state of administration & fact in practice.

    Four: with so much patience and practical experience, dedication, discipline the professional prefix’s his name with Tax Practitioner. Inspite of which as Sridharji has rightly categorized him with a “ant” in this column as the profession is unorganized and unregulated.
    With enormous compliances involved in GST regime Tax Practitioners, numbering in lakhs are spread out in whole of the country even in remote areas, have important role to play. The government on its part, very much require vast human resources for successful implementation of the new tax regime. Therefore Executive shall come forward to legislate suitable law to unify, regulateTax Practitioners which will be beneficial to them as well as to the government.

    S.L. Joshi

    28-10-2016

  14. Deepak maheshwari says:

    Constitution of Indias gives equal rights to every one then why there is a discrimination between CA and Advocate. CA can certify books of accounts while an Advocate is not allowed is trusted for this simple task but trusted for more complicated tasks like interpretation of Law and practise. This discrimination should end in the new GST bill.

  15. Advocate Rakesh Bansal says:

    (1) Legal Practitioners are also authorized to prepare return of income & represent assesses U/s.288(2) of Income-Tax Act read with Rule 12A. Rule 12A inserted by Notification No.2029 Dt.13.6.1962, require Legal Practitioner covered U/s 288(2) to furnish report on the examination of assesses account books & documents in the assessment proceedings. Here question arises when such audit clause already present in Rule 12A of IT Rules, why once again Section 44AB inserted in Income-Tax Act.

    (2) When Legal Practitioners are authorized to prepare return of income under 12A of Income-Tax Rules, it is presumed that such persons possess knowledge of Income-Tax law read with accounting principle prescribed U/s 145 of Income-Tax Act. Information to be furnished in Certificates/Reports under Income-Tax Act amounts to practice of law as it require interpretation of law more & basic accounting knowledge sufficient.

    (3) When Legal Practitioners are the only class of persons entitled to practice law U/s 29 of Advocates Act, 1961 (Law Professionals), there is no justification in
    prohibiting Advocates to issue Certificates or Reports in Income-Tax Act. (This is well supported by Bar Council of India Vs. A.K.Balaji SLP (Civil) 17150-17154/2012)

    • Tax.Adv.BSKRAO says:

      You have correctly said Bansal Sab,

      CBDT has retained outdated mandatory tax audit clause U/s 44AB of Income-Tax Act for Non-Corporate assesses since almost three decades, that too in this computer era, without evaluating its utility & also not providing the ways or mechanism to search out empty slots of CA Signature to assesses/Non-CA Tax Professionals, which is causing strict hurdle for giving voluntary compliance.

      Because of 46 Plus mandatory CA Certificates in Income-Tax Act, Legal Practitioners, Cost Accountants, Company Secretaries and Income-Tax Practitioners can not exercise the authority granted in the statute fully & independently. This is practically causing strict hurdle for voluntary compliance. Here the question is, when such other class of persons are authorized to prepare return, there is no justification to prohibit them from issue of certificates in Income-Tax Act.

  16. Advocate Rakesh Bansal says:

    Policy decision of Finance Ministry, Govt. of India in the Congress regime to expand the definition of “Accountant” to include related professionals in DTC-2013 for the purpose of Tax Audit under Direct Taxes Code read with delegated legislation Section 320(2)(iii) is highly appreciated. But, I do not understand why this was not incorporated in the Income-Tax Act till date.

  17. Advocate Rakesh Bansal says:

    Other than Advocates can not appear before revenue authority on own motion by the strength of power of attorney against the notice issued to the client. But other than Advocates can definitely appear before revenue authority against specific summons issued to him.

  18. Tax Adv.B.S.K.RAO says:

    Adv.S.Muralidhara Sir,

    ICAI (Financials) in its letter No.No.DTC/2012-13/REP-24 Dt. 29.01.2013 addressed to Sri.J.Saravanan, US(TPL-III), CBDT stated as under:-

    In fact, the act of Non-CA tax professionals for making an effort to approach a chartered accountant for getting signature for audit not conducted by him in itself is an unethical act which should be seriously viewed.

    (1) Here question arises what Non-CA’s handling tax audit cases have to do ?
    (2) What about the compliance in those cases ? Govt. should answer ?

    Copy of the letter will be furnished against request made by the reader to my e-mail.

  19. S.MURALIDHARA, Tax Advocate, Chitradurga Dist, KARNATAKA says:

    No Doubt CA Course is very tough and of very high standard, but after succeeding in the exam and getting the CA certificate, we could find no such standard nor strict adherence in practical. Many of the CA`s who signs the certificates including audit report don`t know who is the client. We find it very hard to search empty slots of CA`s at the time of giving compliance u/s 44AB.

    It is nothing but once you pass it will be a gateway for minting money by way of simply certifying, since no case against CA claiming as “certified as per the documents produced“. The time has come to question “Is it necessary to such a loop hole practice that too in fiscal matters“.

    This is the right time to unit the nation as united under TRP Scheme in proposed GST, wherein all professionals has to get themselves registered again with CBEC to practice the area before the quasi judicial authority. AS vakalathnama is made applicable only before the judicial authorities.

    Demarcation for every Tax professionals is must now. Otherwise fashionable justification of encroachment becomes the order of the day.

  20. BSKRAO says:

    Presumptive Taxation Scheme U/S 44AD & 44ADA is totally unconstitutional. It was inserted to give scope to one particular class of Tax Professionals. Further, serious impact of Section 44ADA will be felt, only when such cases come up for scrutiny. When it happens so, huge demands will mount up in the Dept. with added impact of pendency of litigation before appellate authority. Tax Professionals should think about this.

  21. S S.Krishnan says:

    Advocates role required only in courts and appellate forum.As it is aTax Act, CAs should be permitted in all forum of GST. Why you are afraid of CAs. When High Court and other court besides all appellate forum are advocate domain, it is needless to fight for exclusive domain. Moreover CA got tough disciplinary mechanism to deal withholding the cases of its members. There should be cometitive environment and exclusiveness in any Act must be avoided.

    • Dipak Shah says:

      All and every thing are written in Code of Conduct. But who cares and follow? See the Judgement in Gujarat High court Company Petition No 17 of 1996. Every thing is clear on record fraud in accounts. Advocate ( Chartered Accountant Turned to be Advocate) knowing fully fraud in the case even then appearing for last 22 years in the case and also practicing as Advocate. Even Justice knowing this fact did nothing and out right thrown a way the details some how ???!! You all know flow starts from down to upper level ……..
      Per Code of Conduct , as and when Advocate comes to know a fraud in the case , he is obliged to retire from the case immediately. Nothing in practice??!!! It is only books …………..
      When I write about this at the same time we had been taught the case of Dividend Paid Out Of Capital, illegal payment of Dividend and much more when we were under Graduation as case study and also written in Companies Act as Mere book entry of profit , per Companies act 227 Auditors duty to report apparently . But who cares? Our Alma also??
      Soon you will be given full details of Gross Negligence from all sides in one attachment . Which will be sent to you all.
      Regards,
      Shah D J .

  22. RAGHU RAM B, tax practitioner says:

    sir, on broad out look undoubtedly, the CAs,advocates etc. have qualified accordingly to do practice in taxation. But, from IT act 1922, practicing n representing the assessee was being given to 8 categories of persons which continued in 1961 act and to till date. But, as per GST ML it is proposed to limit other tax professionals beyond this regime. It is the utmost need of this country whichi is generating vast opportunities in this taxation, the all qualified, well expertised and senior tax professionals to be joined with CAs and others………

  23. Sreedhara Parthasarathy, Regd.STP & ITP, Karnataka says:

    Since Tax Practitioners are in large numbers, working like ant’s and not organised. Hence their professional ability is not propagated properly in favour, only because of not having a Governing act to that fraternity.

    This is the right time to combine all registered states tax Practitioners with diligence by a smooth transition into GST law with a Governing act for a diversified contribution from them to the Nation.

  24. Mallikarjun Dev says:

    It is need of the hour for the Bar Council of India and State Bar Councils to take speedy and strong steps to protect and safeguard the interests of the Tax advocate fraternity. It is also necessary for the BCI to quantify the number of Tax Advocates and represent before govt of India especially with Legal and Finance Ministers to take suitable measures to prevent Non-Advocates not to enter arena of legal practice from back entry. Let the Modi Govt will prevail for
    idealistic and only for legalised Law Practice and prevent illegal practices prevailing at present.

  25. Ramesh Chander Mutneja says:

    advocaterameshchander@yahoo.com
    I wholeheartedly endorse the views expressed by my colleague advocate Mr. B.S.K. Rao. Further, it is a recognized fact that advocates who are duly enrolled under the Advocates Act are allowed to practice law in any court in day-to-day legal matters who are governed by the rules & regulations prescribed whereas the Chartered Accountants, without prejudice, are refined category of accountants and hence only licensed category of professionals should be allowed to do audit under GST law which shall have its authenticity. Therefore, appearance and Audit under GST Law for all practical purposes is the Domain of Advocates and any intrusion is uncalled for.

  26. GURDEV SINGH ADVOCATE says:

    I must say that there must be a demarcation of line between CA Practice and Advocate Practice. Both are experts in their fields but encroaching each other. CA is meant for certification of Documents auditing etc but not law interpreter.but doing practice in both field. Likewise Advocate is meant law interpreter but prevented from doing audting and other financial certification. This is discriminatory laws. I agitate this trend.

  27. BSKRAO says:

    I propagate the slogan of give CA Certificate to the IT Dept. plan your tax. By this all professionals can share handsome fees received from clients, IT Dept. will also be satisfied that it got CA Certificate !

  28. BSKRAO says:

    Enterprise wherein public’s have substantial interest publish annual accounts. Here, it is presumed that every person understand the same. It means once the accounts are finalised, accountants job is over. About application of Tax Law is concerned, it is the job of Tax Advocates. In reality, CAs are practising tax law in the guise of appearance, this is not permitted in their statute book. In view of insertion of 46 CA Certificates in Income-Tax law many of the leading Tax Advocates lost their practice in India. Here crux of the matter is CAs enjoy both the power of Certification & appearance as accountant of the assessee. Therefore assessee prefer to approach CA. Further, if assessee approach CA he can declare less income & pay less tax, if assessee approach Advocate, he has to declare more income & pay more tax in 44AD cases, in regular tax audit cases an Advocate has to bow down before CAs to give compliance under Income-Tax. Law framers do not understand these above points. I am of the strong view once a particular class of professional is authorised to prepare return, there is no justification in prohibiting such class of professional to issue certificates & reports under tax law.

  29. BSKRAO says:

    It is prayed before the participants to kindly comment on the issue/points raised in this article to enable others to enhance the knowledge about the subject matter of the article. I am not intending to glorify any particular class of professional, just I highlighting the legal position prevailing on date.

  30. BSKRAO says:

    B.S.K.RAO, B,Com, LL.B, MICA,
    Auditor & Tax Advocate,
    BDKRAO, Beside SBI,
    Tilak Nagar, Shimoga-577201
    Karnataka State

    My e-mail wrongly posted in the article,
    my correct e-mail is as below

    Mobile : 0-9035089036
    E-Mail : raoshimoga@gmail.com

  31. Manu kulshreshtha says:

    B.S.K. RAO clearly specified that the practice of law in every manner or in any law is the domin of the Advocat only either before any court, judicial or quasi judicial authorities because the advocates are only recognise class of person to practice in the field of law. And Advocat act provide this privilege to advocates only. But if any other person/ non advocate do the practice of law that enactment would be punishable according to Advocat act,1961.

  32. S saravanan says:

    S saravanan from Madurai t n
    Advocate Rao sir well said I accept the details mentioned
    Most of the. Advocates rights are stolen by various professionals and persons without having the proper knowledge

  33. Praveen Goel says:

    It is correctly said that Practice in GST law is advocates domain.

  34. B S K RAO says:

    Among Cash, Mercantile & Mixed System of Accounting, Mercantile System reflects true profit or loss of the business enterprises. In this system all expenses relates to the year, whether paid or payable are debited to Profit & Loss A/c & payable portion shown in liability side of Balance Sheet, similarly all income relates to the year, whether received or receivable are credited to Profit & Loss A/c & receivable portion shown in the assets side of Balance Sheet. Further, expenses incurred in advance & income received in advance are shown in assets & liability side of Balance Sheet respectively. Based on this principle only all other accounting standards are framed. There is nothing new in Accounting & practice of Accounts is not the domain of CAs. To report section wise wrong claims in Tax Audit Report (Legal Opinion on Tax Law), person conducting tax audit should know Hindu Law, Muslim Law, Succession Act, Limitation Act, Income-Tax Law, VAT Law, GST Law, Bonus Act, Provident Fund Act & so many other Minor Acts etc..etc..

  35. MANDEEP SINGH says:

    There is no need of repeated verification of same account books like day book, cash book, ledger audited under any other law like Income tax act. There is no need of repeated financial audit under GST Act and it is only compliance of GST Provisions covered u/s 29 of Advocate Act 1961. I also want to ask Chartered Accountants, Satyam accounting fraud committed by auditors and there case represented by Advocates before court. If they are too much competent in financial audit than they can appear in person, why they were not appear? I tell you because to write accounting entries are different from legal interpretation of accounting entries. what was motive of auditor to post a wrong entry it is a interpretation of law.

  36. Advocate Rakesh Bansal says:

    I do 100% agree with the view of B.S.K.RAO in this article. I am of the further opinion that such orders passed under proposed GST Law can not be appealed before the appellate authority.

  37. SREEDHARA PARTHASARATHY says:

    OF COURSE THOUGH I AGREE ON THE OBSERVATION OF THE AUTHOR BUT THE DEMARCATION OF THE AREA OF PRACTICE BY THE RELATED TAX PROFESSIONALS IN INDIA IS A BIG HURDLE FOR THE SUPPORT OF VOLUNTARY COMPLIANCE IN INDIA.

    SINCE THE LEGAL PRACTITIONERS BILL 2010 IS IN COLD STORAGE AND IN LIEU OF IT, ALL RELATED TAX PROFESSIONALS HAS TO GET THEMSELVES REGISTERED VOLUNTARILY, INDIVIDUALLY TO PRACTICE UNDER THE SCHEME OF TRP IS PROPOSED IN THE UPCOMING GST LAW 2016. BUT THIS WILL NOT FULFILL THE REQUIREMENT OF REGULATING THE TAX PROFESSIONALS IN ANY WAY FOR THEIR MISCONDUCT.

    HENCE A UNIQUE TAX PROFESSIONALS TAX LAW BILL IS THE DIRE NEED OF THE HOUR IN THE LINES OF US TREASURY CIRCULAR NUMBER 230, WHEREIN SIMILAR TYPE OF PROBLEM HAS BEEN ARISE IN AMERICA AND THE SAME WAS SUCCESSFULLY REGULATED.

    INDIA IS IN NEED OF A TAX PROFESSIONALS PRACTICE BILL, WHICH WE HOPE OUR SENSIBLE AND RESPONSIVE CENTRAL GOVERNMENT WILL ENACT IT IN THE INTEREST OF GOVERNMENT REVENUE AND THE LARGE NUMBER OF TAX PROFESSIONALS (THAT TOO TAX PRACTITIONERS) IN INDIA.

  38. Aswatha Reddy says:

    All the professions are existing because of the special Acts passed by the parliament of India which has passed Advocates Act also. The Parliament will resolve the claims and counterclaims raised by the interested parties like advocates, CAs,ICWAs and CSs.The courts also can through some light to resolve the issues

  39. lalit kumar says:

    Yes it is adv right.

  40. Munish maheshwari says:

    It is true that Practice under GST Law is exclusive domain of the Advocates. I am agree with BSK Rao and Mallaikrajun dev ji.

  41. Om Soni says:

    I heartily appreciate the Author for doing such excellent work on the subject and portrayed a true picture of the legislature on practice of law in India.
    I’m fully agree with the article and practice of law before any authority or forum is only the right of advocates.

  42. Jyoti Raj says:

    Yes i fully agree with mallaikrajun that in GST Advocates would in better position then others

  43. Munish maheshwari says:

    It is true that Practice under GST Law is exclusive domain of the Advocates. I agree with BSK Rao Sahib.

  44. VINOD KUMAR GUPTA says:

    A.K. Balaji Vs. Government of India (2012) 35 KLR 290 (Mad.) it was held that …………………. “many accountancy and management firms are employing law graduates, who are rendering legal services, which is contrary to the Advocates Act.”…….
    Therefore The Bar Council of India should take necessary steps in relation to the practice of law by chartered accountants and management firms, which is contrary to the Act.

  45. Rajesh Thakkar, Advocate says:

    CA is practicing as per Chartered Accountant Act. According to section 2(2) they are eligible for practice of accountancy and certifying the accounts.

    The practice of GST and Income tax is practice of law. However, under the shelter of appearance clause they are doing practice of Income-tax. They have to submit power of attorney from the assesses to appear before the authority.

    In the case of Jaymal Thakore vs Charity Commissioner the Hon’ble Gujarat Hig Court’s larger bench has given very remarkable Judgment that Power of attorney holder is only the messenger of his principal.

    The original spirit of section 288 is that any chartered accountant is writing of books of account than he can appear in capacity of accountant. However, he can’t join himself in practice of Income-tax like an advocate.

    However, the present real fact is other. The author of this article is absolutely correct in his view.

    I hope that BCI will prevent the such power of attorney holder from practice of taxation.

  46. Adv. Mahesh P. Bhagwat says:

    The article pf Mr. BSK Rao is really elaborate and the tax lawyers must read it carefully. The future of tax lawyers all over India is to be anticipated in positive manner by all Advocates. Rao sir keep it up! Please give us updates on Tax guru time to time.

  47. VINOD KUMAR GUPTA says:

    the views of the author are very true and appreciable. 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.

  48. Sanjay Arora Advocate says:

    Practice of law is the domain of Advocates only and GST is not any exception. The views expressed by Sh BSK Rao is the real picture of the legislation. I thank the Author of this article for present true picture.

  49. INDRONIL CHATTERJEE says:

    Great Comment by the Author and the same must be done in the field of Income Tax also.

  50. sundar-Advocate says:

    Mr.B.S.K.Rao, It is correctly said by you that Practice in GST law is advocates domain. S.sundar – Advocate-Erode

  51. BSKRAO says:

    Dev Sab,

    Thank your for your comments, Further:-
    Original Income-Tax Act, 1961 was well drafted by learned officials in Finance Ministry & it was capable of meeting the expectation of the Govt. in all future events, except requiring amendments for events/changes taking place in this 21st Century. Disturbance to the original intention of legislature in Income-Tax Act, 1961 started in 1984 by the intervention of Institute of Chartered Accountants of India by way of inserting mandatory Tax Audit Certificate U/s 44AB by only Chartered Accountants. This was also cautioned by Sri.P.C.Padhi, former Chairman, Central Board of Revenue and Deputy Controller & Auditor General of India, Sri.D.K.Rangnekar former Editor, Economic Times, who were the members of Direct Taxes Committee, popularly known as Wanchoo Committee & gave dissenting note on the issue.

  52. D Narasimha Goutham says:

    I do agree with the opinion expressed by the author. The government of india should bring a legislation to this effect and exclusive rights are given only to the practicing advocates who are competent to represent in the court of law.

  53. Anand Agrawal says:

    There are several instants where person from one profession glorify its profession than others. this is hilarious. This reply is not being intended to decrease value of any profession but being a CA,CMA,CS is more tough than clearing an LLB. That vouch itself the quality of curriculum of such professions. Still some people want to make their profession superior than other professions. Every body knows that Accounting, Accounting standards, accounting practice plays greater part while assessing taxes that is not a substantial course material in LLB.

  54. Anand Agrawal says:

    There are several instants where person from one profession glorify its profession than others. this is hilarious. This reply is not being intended to decrease value of any profession but being a CA,CMA,CS is more tough than clearing an LLB. That vouch itself the quality of curriculum of such profession. Still some people want to make their profession superior than other professions. Every body knows that Accounting, Accounting standards, accounting practice plays greater part while assessing taxes that is not a substantial course material in LLB.

  55. Mallaikrajun dev Ch says:

    It is true that Practice under GST Law is exclusive domain of the Advocates.The opinions expressed by the author very fair view of the facts one has to realize. I congratulate the author for his extensive work on the topic of the current relevance.

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