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Advocate Deepak Bapat

advocate-deepak-bapat1. 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.

2. 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:

(i) Advocates

(ii) Sales Tax Practitioners(Commerce graduates and retired officers of the Sales Tax Department)

(iii) Income Tax Practitioners(Commerce graduates and retired officers of the Income Tax Department)

(iv) Retired Officers of the Excise Department

(v) Chartered Accountants

(vi) Cost Accountants

(vii) Company Secretaries

3. 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. In every State, Commerce graduates and retired officers of the Sales Tax Department are enrolled with the Commissioner of Sales Tax as Sales Tax Practitioner(STP). Similarly, under the Income Tax Act, commerce graduates are enrolled with the Commissioner of Income Tax as Income Tax Practitioner(ITP). It is a matter of surprise, as to why there is no provision under the Excise Act, to enroll commerce graduates as Excise & Service Tax Practitioner, when, even the CA (who knowns only accounts) is allowed to attend as ‘Agent’.

4. The reason for the above is that, the ITPs & STPs does not have the Governing Act and Governing Institute to convince the Government of India that the STP’s have sufficient knowledge of accounts to practice as ‘Excise & Service Tax Practitioner’. The Advocates, Chartered Accountants, Cost Accountants and Company Secretaries are governed respectively by the Bar Council of India, Institute of Chartered Accountants of India, Institute of Cost and Works Accountants of India and Institute of Company Secretaries of India. The aforesaid Institutes(Governing Body) are established under the respective Act of Parliament of India.

5. The Government of India has completely ignored the above important aspect regarding STP’s, while introducing GST, and without the application of mind, introduced the scheme of ‘Tax Return Preparer’ under which, any commerce graduate can prepare the GST return. As the STPs have played the important role for successful implementation of Sales Tax Law, I strongly suggest that, before the introduction of GST, the Central Government should introduce the ‘Goods & Service Tax Practitioners Act of India’ to govern the ‘Sales Tax Practitioners’ who are presently enrolled with the Commissioner of Sales Tax of each State. Needless to state that the aforesaid Act can be enacted even before the GST Act comes into force, because currently also, Goods and Services are being taxed under the respective Act and therefore the STP’s and retired officers who are attending the proceedings under the respective Act, can be called as GST Practitioner within the meaning of ‘GST Practitioners Act of India’.

6. If the GST Practitioners Act is brought in force and GST Practitioners Institute is established thereunder, every “GST Practitioner” will be subject to statutory discipline. Moreover, because of examination and obligatory training courses conducted by the GST Practitioners Institute, he will be proved of immense help to the GST Department to increase legitimate revenue. On the eve of GST Act where e-compliance would be a key factor, the “Institute of GST Practitioners of India” would produce a GST practitioner, with the level of assurance and creditability expected by the Parliament of India. I, as then President of the Sales Tax Practitioners Association of Maharashtra, tried with the Government of Maharashtra, for the introduction of the ‘Sales Tax Practitioners Act of Maharashtra’. However, the Ministers and IAS officers for the reasons known to them refused to do so.

7. The number of STPs Enrolled with the Commissioner of Sales Tax, Maharashtra State, are more than 16,000. All over India, the number of STPs is more than 3,50,000. In the year 2010, the Central Government prepared the Bill to introduce the Legal Practitioners Act. As there was a mistake of including the Advocates who are already governed under the Advocates Act, it was opposed by the Bar Council of India.

8. 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.

9. The present Tax Laws and Section 86 of the GST Model Law allows 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.

10. As stated in the beginning, because of unawareness of Politicians, they are treating CAs as supreme, for practice of tax laws, though other professionals 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 Advocates and Tax Practitioners 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. Same is the suffering of ITPs and STPs. The above situation, gave an opportunity to CAs to canvass that very few Advocates are practicing under tax laws. About the ITPs & STPs the Courts have taken the view that as they are not governed by the Statutory Body and Statutory Act, their level of assurance and creditability cannot be guaranteed.

11. The aforesaid facts and circumstance makes it clear that large number of STP’s and 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.

12. The provision of appointing Tax Return Preparers vide Section 34 of the Model GST Act 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.

13. The provision of allowing a taxable person to be represented 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.

14. Under the circumstance, I suggest the Finance Minister to do the following:

(i) 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 GST Practitioner, Advocate, Cost Accountant, Company Secretary and Chartered Accountant be allowed to certify the said ‘compliance report’.

(ii) To enact “The GST Practitioners Act of India” and establish thereunder “The Institute of GST Practitioners of India”.

(iii) To amend Section 86 of the Model GST Act in such a manner that any person who, immediately before the commencement of this Act was qualified to appear as a Sales Tax Practitioner, shall be continued to appear as a Goods & Service Tax Practitioner for representing a taxable person in any proceeding.

(iv) To amend Section 86 of the Model GST Act in such a manner that the qualifications which were prescribed for a Sales Tax Practitioner under any earlier law, shall also be prescribed for a Goods & Service Tax Practitioner within the meaning of Goods & Service Tax Practitioners Act of India.

(v) 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.

(vi) To delete Section 34 of the Model GST Act which provides for Tax Return Preparers.

(vii) To amend the Income Tax Act on the aforesaid lines.

(Author is an Advocate & Sales Tax Consultant and can be reached, Mobile: 9820528006 )

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  1. Niraj says:

    CA and CMA only have monopoly in GST as both are equal.Also CMA is much better than CA from all prospects.CMA is as equal to IAS.Indian cost service is one such example.

  2. Ankit says:

    I don’t think that there is the monopoly of chartered accountants. I was reading one article at this link

    according to this link, any commerce graduate can become gst practitioner so there is no monopoly at all

  3. Raghuram B .M. com. STP n ITP RJY. says:

    Being a STP n ITP I support authors mood regarding setting up of law by parliament for the gst practitioners . And also remove the line of relative/regular employee who r not equal to other tax fraternity. Should change the word AUDIT as compliance report which can be signed by 5classes of Tax practitioners.

  4. Tax, Adv. BSKRAO says:

    If any one carefully look at present GST Law, it is evident that it is not drafted by legal experts in the field, hence it does not meet prerequisites of legal drafting. It has also failed to link sections read with rules

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

    Do not worry about migration, GST will not come out shortly in the present form. It may also go to cold storage like DTC for the reason well known to every Non-CA Tax Professionals. Reasons are as under:-
    (1) 95% of Tax Professionals who are supporting compliance under VAT are not supporting GST in present form.
    (2) Many states are not agreeing the formula of sharing revenue & administration.
    (3) Opposition strongly opposing it.
    (4) In the present demonetization, it is not advisable to introduce GST
    (5) Only ICAI & FM are agreeable to present form of GST

  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. Tax.Adv.BSKRAO says:

    Tax professionals supporting/opposing issue raised by the author may use the below link for voting.

    Let the opponents have fair chance to oppose

  8. S.Muralidhar, Tax Advocate, Chitradurga Dist., Karnataka says:

    We should not get embarrassed especially when discussing and finding a way on realistic issues. We should work collectively to find the solution and solve the problem. Otherwise how we can call India is a democratic country, where freedom of speech and expression is a crown of it. I am closely watching the comments and the replies. I feel this is the time to through light only on certain (very minimum facts) which I have experienced.

    1. Now a day’s CA`s are projecting that talking in the public that their course is a greater honour and noble than an IAS quoting that ICAI has a vision to see the institute is world`s No.1 by 2020.

    2. Yes, there are good CA`s in the Nation really serving the nation but, not all CA`s.

    3. As for as the Corporate is concerned little procedure is followed only because of draconian Company Law administered by MCA. There is no standard in the cases of Non-Corporate assesses.

    4. One can understand why the standard of new CA`s has comedown since, ICAI has amended the eligible criteria of Commerce Degree with 50% to its course as earlier it is a major strength of studying CA course with abundant knowledge even serving those students to come out with bright colours and work with better experience. Now 10+2 is the criteria. By this the importance of Commerce Degree is reduced and they are trying to deface the strength of B.Com Degree posing the CA course is equivalent to a Post-Graduation Degree.

    5. As I know CA course is very tough and really good, but it is limited only to getting pass marks in the exam and nothing survives once make it in the exam and go for employment or practice. The concept of CPE Chapter credit is a mockery. Majority of them were attending and just put their signature and go out of venue.

    6. Some of them only will work under a Practicing CA as a article clerk, many will get dummy entry. Once they pass CA Generally they start working in some organisations by taking their salary as fees with TDS so that their Certificate of Practice get experienced. Once they go on getting the demand for their signatures then they will open a independent office by appointing CA failed, B.Com Graduated STP`s/ ITP`s or some un authorised account writers as their assistants to flourish in their field.


    8. Though any STP, ITP or any B.Com Graduate having guts to have independent office has to either book the empty slots of the CA`s to give audit compliance once in a year or has to search for others empty slots if there is a increased demand or disagreement with previous CA. The signatures of the CA are available without their physical appearance depending upon the mood (Digital Signatures has made it more easy for uploading). Now a day’s CA has become nothing more a signing kings since you go certain banks and certain officers including government departments they ask get it signed by a CA.

    9. They are little lenient only because they cannot appear above the level of appellate tribunals and in any local courts and high courts for their clients (Please go through the judgment in the case of National Tax Tribunal)

    My humble Request and Suggestion is Live and let live in an healthy atmosphere where king is admired, not unnatural.

  9. ca.lalit gupta says:

    advocates are not supposed to practice tax at all.
    i am my self a advocate and a chartered accountants.passing law degree is very easy .again i myself know how much knowledge in depth i have acquired in ca course and llb course.

  10. CA Lalit Munoyat says:

    Dear Sandeep Kanoi
    Please stop all further comments because sobriety has lost it all to spewing poison by one active participant who is raising questions on accounting standards, truthness of a voucher etc. without first going through the provisions of the Companies Act 2013 on Auditing. If he had done so, the questions raised would have lost total relevance.

  11. CA Prasad Parab says:

    It is obvious that a CA is well versed in various laws. In their examination, they are asked questions under various laws and we require expert knowledge not only working knowledge to answer those questions. In the course of our articleship, we actually have practical training, are exposed to those so many laws and after qualifying, many of us practice those laws. So, we believe that CAs are highly qualified to give legal advice under various laws, which they regularly encounter in their practice. I think that the assesse or the client will obviously want to go to a person who they believe would give them more practical advice based on their daily exposure to the particular law and now days client want a all services under a one roof.

  12. Tax Advocate Mallikarjun Dev, Ch says:

    The idea behind the Article is only to remind the GST council, the GOI not to ignore the relentless services of other than CAs, Say Tax Advocates and Tax Practitioners. Unfortunately there is no proper recognition for their dedicated services. Let all the Tax Professionals be treated at par before the direct and indirect Tax Laws. Certain CA friends are commenting other than CAs as compounders. How far it is justified on their part?
    Every one of us know not only our expertise but the satisfaction of our clientele will make us to continue in this competitive profession. It is the right of all the Tax Professionals to continue in their endeavor with age long legacy. The author of the article, Sri Bapatji has rightly emphasized on the insecure feelings of the other than CA Tax professionals. I advise my CA friends don’t be egoistic. feel proud of your profession. We do admire. But don’t undermine other professions. the controversies should be resolved in friendly way. Let the GST council analyze and understand the key role of Tax Advocates and Tax Professionals in GST arena and do provide due place for them.

  13. Tax.Adv.BSKRAO says:

    Finally, I request before GST COUNCIL to frame GST law is such a way, that there should be any circumstance approaching two Tax Professionals for the purpose of giving compliance at the extra cost of the dealer. Give full authority to all class of Tax Professionals & make them accountable Or else retain such class of professionals to whom you are giving full authority of Tax compliance & delete others, so that the conflicts between Tax Professionals ends.

  14. MANDEEP SINGH says:

    When CA’s, CS, CMA and ITP etc. can appear before Income tax authorities & tribunal etc. even that they are not registered Bar council but on other hand our government is restricting GST compliance work only upto CA’s and CMA u/s 42(4) is a wrong one. Irrespective that 90% work of indirect taxes done by Advocates and ITP’s . All professionals should be authorized for sign off certificates u/s 42(4) GST.

  15. MANDEEP SINGH says:

    Advocates are only recognized class for ” Practice of Law” under section 29 of Advocate act 1961 & Chartered Accountants are authorized Practice of Accountancy u/s 32 of Chartered Accountant act 1949. When particular class is authorized for specific work under their act than other body can’t claim for the same work. CA’s cannot be authorized for ” Practice of law” and it will be conflicted to Advocates act even that they had studied some law subjects in their curriculum as like B.COM degree holder. Hon’ble Supreme court commented that clerks of the Advocates have good legal knowledge & can we say advocate to them. Conclusion:- CA’s demand for Practice of law is wrong and they are regularly making contempt of court in A.K BALA JI CASE.

  16. Tax Practitioner A.M.Remeshkumar says:

    The opinion and suggestion of Advocate Mr. Deepak Bapat is totally correct. The 90% of the works under the different Indirect taxation laws in India are handling through the Tax Practitioners in India.

  17. ALOK KUMAR DAS says:

    As a Sales Tax Practitioner at Odisha i appreciate the proposal for ‘compliance report’ but advocates practicing taxation must have through knowledge on accounts to counter the accounting professional and there must be some restrictions for every professional to practice in a particular law so that in comming GST regime the tax advocates should not be neglected.

  18. CA AJIT GAJERA says:

    Author knows nothing, uneducated person, coz he has no ethics for his profession, no one can say that ur work is criminally liable….

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April 2024