Case Law Details
Allahabad High Court
Chief Justice’s Court
Case :- MISC. BENCH No. – 7116 of 2014
Petitioner :- Tax Lawyers Association Lko.Throu General Secy.& Anr. Respondent :- State Of U.P.Thru.Prin.Secy.Tax & Registration U.P.Lko.& Ors
Counsel for Petitioner :- Dhruv Mathur,Rahul Agarwal,Sandeep Dixit,Uphar Shukla,Vaibhav Pandey
Counsel for Respondent :- C.S.C.,Ashok Kumar,Pratik Nagar,Praveen Kumar
Hon’ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon’ble Devendra Kumar Upadhyaya,J.
In the writ petition, which has been admitted by an order passed the Division Bench on 6 August 2014, there is a challenge to the validity of Rule 73 of the U.P. Value Added Tax Rules, 2008 on the ground that they are ultra vires the provisions of the U.P. Value Added Tax Act, 2008 and the Advocates Act, 1961 insofar as it permits persons who are not Advocates ‘to appear and represent’ before the authorities established under the Act of 2008. Besides challenging a circular dated 1 May 2013 of the Additional Commissioner, Commercial Tax, the petitioners have sought a mandamus to the respondents not to allow or permit any person other than an Advocate as defined under the Act of 1961 to practice, appear and represent any dealer before the authorities established under the Act of 2008. On 6 August 2014, when the petition was admitted by the Division Bench, the following interim order was passed:
“In the meantime, as an interim measure, we direct the respondents that no person whosoever, may be permitted to advertise in the Newspaper or any leaflet, inviting assesses for the purpose of filing of return or arguing before the authority under the VAT Act. Any person, who is not a registered advocate, shall not be permitted to appear before the Authority under the VAT Act.”
Applications for impleadment and for vacating the interim order have been filed before this Court by the Institute of Chartered Accountants of India and by the Institute of Company Secretaries of India. We allow the impleadment applications. The applications for vacating the interim order have been heard.
Section 79 of the Act of 2008 empowers the State Government to make rules to carry out the purposes of the Act. Under sub-section (2) of Section 79 of the Act of 2008, it has been specified that without prejudice to the generality of the powers conferred under sub-section (1), rules may, inter alia, provide for ‘generally regulating the procedure to be followed and the forms to be adopted in proceedings under this Act’. Rules of 2008 have been framed in exercise of the rule making power. Sub-section (4) of Section 79 of the Act of 2008 stipulates that all rules, which are made under this Section, shall be published in the Gazette and shall have effect immediately as if enacted in the Act. The Rules, therefore, have force and effect under the Act as if enacted into its provisions and in the same manner as if they are part and parcel of the parent legislation. Rule 73 of the Rules of 2008 provides for representation before the authorities under the Act and is to the following effect:
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HC prohibits Non advocates from appearing before VAT Authorities
Real Fact of Present World Advocates , CA, CS fighting with each other and on other side agents who are not qualified practising as Tax Consultants taking good amount of Work because they have no regulator no rules to follow and advertising giving pamphlets, which really downs the image/goodwill of Tre Profesionals,
Whether in field of medical non doctors allowed to Practise????
Then why in legal field ????
Relevant extract from the judgement above,
“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 practise in any court or before any authority or
person unless he is enrolled as an advocate under this Act.”
Under section 33 of the Act of 1961, no person is entitled to practise
in any court or before any authority or person, on or after the appointed
day, unless he is enrolled as an advocate under the Act of 1961. This is
however, subject to a provision to the contrary being made in the Act itself
or in any other law for the time being in force. The embargo which is
enacted in Section 33 of the Act of 1961 upon persons, who are not
advocates practicing in any court or before any authority or person is,
therefore, clearly subject to a provision to the contrary in the Act or except
as otherwise provided in any other law for the time being in force. Hence,
where a provision is contained in any other law for the time being in force,
entitling persons who are not advocates to practise in any court or before
any authority or person, its effect would be to lift the embargo which is
imposed by Section 33 of the Act of 1961.
All other Acts have the effect of overriding the said provisions in the Advocates Act,1961. Thus the right to practice law in not the right of advocates alone. If any Act is silent then only advocates can practice. Else others who are mentioned in the relevant Act can also practice
WHATEVER ICAI (FINANCIALS) DO, ITS MOTIVE & INTENTION SHOULD BE GOOD. THEN ONLY IT WILL ENJOY NAME & FAME IN THE LONG RUN
Appearance for proceedings on behalf of assesses before Income-Tax & VAT Authorities squarely fall within the meaning of practice of law for the genuine reason that all the procedure laid down in Civil Procedure Code is followed. If other than Advocates are allowed to practice Income-Tax Law & VAT LAW, wrong doing of such persons at original stage may also result in gross injustice to the assesses at higher appeal stage.
Subject matter is” HC Order allowing CA, CMA and CS to appear before VAT Authorities” …..
First comment from our law expert begins with”
”
TAX POLICY DIVISION,
CENTRAL BOARD OF DIRECT TAXES,
NORTH BLOCK,
NEW DELHI-110001
(1) Information provided by Directorate of Income-Tax (Systems) against application filed U/s 6(1) of RTI Act furnished to your good office (See Exhibit-2 enclosed as attachment…………….”
To some people ,every morning begins with attack on CBDT,Chartered Accountants and………poor Section 44AB And 44AD….VERY STRANGE ATTITUDE……
TO,
TAX POLICY DIVISION,
CENTRAL BOARD OF DIRECT TAXES,
NORTH BLOCK,
NEW DELHI-110001
(1) Information provided by Directorate of Income-Tax (Systems) against application filed U/s 6(1) of RTI Act furnished to your good office (See Exhibit-2 enclosed as attachment). Herein, your good office will find particulars of Income-Tax admitted in return filed for the Asst. Year 2012-13 and 2013-14 that relates to ITR Form No.1, 2, 3, 4, 4S, 5 & 6 both covered by tax audit & not covered by tax audit separately.
(2) Herein, learned officials in Tax Policy Division of CBDT will find that Inocme-Tax admitted as per return filed in ITR Form No.4S which relates to presumptive taxation linked to tax audit clause is just Rs 1,137/- crores and Rs 1,543/- crores for the Asst. Year 2012-13 and 2013-14 respectively.
(3) Because of inserting presumptive taxation scheme (Section 44AD) linking the same to tax audit clause (Section 44AB), resulted in unemployment of Non-CA Tax Professionals and full employment to Chartered Accountants.
(4)It has been recently observed by intelligent officials of Income-Tax Deptt. in Survey Wing that many dealers are invoking Section 44AD of Income-Tax Act to file their returns, keeping the turnover at below tax audit limit and are owning assets worth more than crores.
(5) In presumptive taxation scheme (Section 44AD), it is evident that the Deptt. is deriving revenue in the range of just Rs 1,000/- odd crores only. Now the Deptt. should think that, is it fair to retain presumptive taxation scheme (Section 44AD) in Income-Tax Act to provide full employment to CAs, that too at the cost of Non-CA Tax Professionals and Govt. revenue.