SYED MAHABOOB PEER
Brief: If the field for practicing in Laws is Ocean, the field for practicing in Taxation (which could further miniature into Income Tax, VAT/Sales Tax, Service Tax, etc.,) is Oceanarium or Aquarium. Similarly, whereas at the universal/collective level of all the “Acts” put-together is treated as the Ocean, each and every “Act” at its individual level automatically is an Oceanarium or at least an Aquarium. Thus, when any problem arises within implementation of an “Act” it will not only be easier, but also be appropriates to shoot-out the same within its purview of the Oceanarium or Aquarium. This truly resembles the unique & highly valued family system of our India.
Introduction: Most of the disputes in a Family will be settled within the Family, and it will be extremely very rare to approach any Police Station or Civil Court. Likewise, the Income Tax disputes must ordinarily be settled in the Income Tax Family itself.
Main body: Generally, whensoever any quarrel or dispute arises between two youngest children of a family, they place it before their immediate Young-Adult – Brother or Sister (which is legally regarded as complaining or making petition), if any of the disputed-children feel that their grievance is not properly redressed by their immediate Young-Adult – Brother or Sister, such aggrieved child will place the matter of his/her grievance before next Adult of the family – Mother (which is legally regarded as making appeal before the Higher Authority), if either of the party still feels that their dispute is not properly resolved, such aggrieved child will place the matter before Older-Adult or Head of the Family – Father (which is legally regarded as making appeal before the Appellate Authority), even then, if either of the parties yet feels the deliverance as unfair or unacceptable, then only they will take the matter outside the family i.e., any Court of Law for truthful & rightful justice.
Therefore, as far as Income Tax is concerned, the Tax Payers/Assessees, Authorized Representatives/Income Tax Practitioners, Officials of Income Tax Department, including the Tax Tribunals, are the part & parcel of the Family of Income Tax Act. Thus, while taking out the matter outside Family, such a move should be only after completing at the highest level of the trial at family’s own patio, i.e., the Tax Tribunals.
Conclusion: Hitherto, the Lawyers/Advocates are attached to civil courts and are practicing Law before the Judges in Courts of Law by presenting, representing or pleading on behalf of their clients/cases. Henceforth, if Lawyers & Advocates (Graduates in Laws) are alone entitled to practice even in Taxation Field (Income Tax, Service Tax, Custom & Central Excise, Sales Tax (VAT), etc.), I opine that every official of the Departments of Income Tax, Service Tax, Customs & Central Excise, Sales Tax (VAT), etc., must also be a Graduate in Laws. Otherwise, not only the official work & collection of tax will be disturbed a lot, but also causes very hardship to both the Tax Officials and Tax Payers.
Is an Advocate who is also doing tax audits etc can write his profession as Tax Consultant and designation as Advocate?
CA when he certifies he is made liable to any of the faults in the assessment of tax on behalf of Asses see. He is expected to the master with taxation and also truthful in reporting to IT dept. However he will have limitation when arguing wrt law because law because law is procedures oriented step by step which take lot to time before any results are obtained. This procedures and the time required will be well understood and utilized for professionals in Law. A CA tying to do court representation will bring down his efficiency in main areas of his profession. Advocate will present the details what CA provides in court formats and in required time to obtain the results. CA and Advocate have there roles to play in helping clients . It difficult for one to be CA + Advocate at same time , it needs thinking 🙂
Dear Puneet Singhviji,
If you possess a Degree in Law (but not Registered as an Advocate with the Bar Council of India & not practicing at any Civil Court of Law), you are eligible to become a Registered Income Tax Practitioner. Please read the Article “DIGNIFIED SELF-EMPLOYMENT: INCOME TAX PRACTITIONER” published on this TaxGuru.in Website.
Dear Sir,
I am LL.b. i would like to TAX Practice like direct & indirect can i eligible for that to practice in tax tribunal
If anybody is passed out in law and holds the law degree recognized by the Govt. Of India then it does not mean that he is the only eligible person who can do everything with laws in India ; he may be an expert in law but as far as eligibility is concerned there are some other experts relating to tax and other matters though they does not hold any law degree but they have their expertise and off course they are well advisers. Therefore , it is the time for the India Govt. to frame a right and transparent policy regarding tax practitioners who will have to take the specific assignments and who are eligible to do such type of practice in India .
Everyone in nuts. 1.2.3. go
Ashok Aggarwal ji, It is a true that experience must required for every filed. But some technical skills are taught to Advocates during law study for “Practice of law”. Non- Advocates are totally unaware from those skills, which can result huge financial loss to assessees. On other hand, it is a true fact that EVERY LAW IS CORRELATED with other laws, as like Income tax act is correlated with LOCAL LAND LAW, HINDU LAW, MUSLIM LAW, TRANSFER OF PROPERTY ACT, EVIDENCE ACT, CONTRACT ACT, NEGOTIABLE INSTRUMENT ACT, CPC, CRPC, INTERPRETATION OF LAWS, IPC etc. If you want technical defend your client than you can’t ignore above mentioned laws. Please keep in your mind base formed at initial level will be considered in appeal matters.
I advise to SYED MAHABOOB PEER sahab to re-read the article written by him…..i believe that he will not understand what had he written in his own article……Law is not a family affair he must understand…..Law is law and can be better under stood by law professionals….
Divakar Sir,
Indian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Therefore, authorised representative clause not required in any Indian taxation statute. Bar Council of India Vs A.K.Balaji [SLP(Civil)No(s)17150-17154/2012] Dt.4.7.2012 (SC) & A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) it was clearly held by Hon’ble Supreme Court & Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious & non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act. The constitution bench of Supreme Court of India in National Tax Tribunal case of Madras Bar Association Vs Union of India bearing No.150 of 2006 Dt.25.09.2014, it was ultimately held that Chartered Accountant to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. The verdict of Supreme Court is the declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution & contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution. Hence, Advocates alone are entitled to Practice, Plead and Act before the revenue authorities. On date, authorized representative clause under all Indian taxation statute has been subject to review of apex court and hence require deletion. Other than Advocates should appear before tax authorities under CPC/Evidence Act, against summons issued. If such appearance clause still retained in statute book of Indian taxation laws, situation may arise that order of assessing authority passed against the representation of other than Advocates become in-fructuous, bad in law, null & void. Further, such orders cannot be enforced/appealed. Power of attorney (Vakalatnama) to practice law can only be given to Advocates.
Audit means “verification”. Person who conduct audit need to be a knowledgeable in the matter he under takes to Audit. Ex:- Energy Audit, Environment Audit, Product Audit, Process Audit, Cost Audit, Legal Audit in USA & Tax Audit in Indian Income-Tax Act. Hence, the word “Audit” demand varied type of knowledge & it can not be restricted to single professionals like Chartered Accountants. In conclusion, person specialized in Income-Tax law should issue Certificates/Reports in Income-Tax Act. On careful study of Section 288(2) of Income-Tax Act read with Rule 12A of Income-Tax Rules, it has to be presumed that all five class of persons possess knowledge of Section 145 read with 14 Accounting Standards of CBDT, required for Income-Tax Practice. Because certain qualification has been fixed in Income-Tax Act for these five class of persons. Accounting standards are only clarificatory in nature & can not override Accounting Concepts & Principles. Further, Accounting Standards framed by ICAI & IFRS not required for Income-Tax Practice. Here the question is, when such other four class of Non-CA Tax Professionals are authorized to prepare return under Rule 12A of Income-Tax Rules, there is no justification to prohibit them for issue of Certificates/Reports in Income-Tax Act, it works contradictory to the spirit & intention of law framers. In Tax Audit Report Form No.3CD, section wise wrong claims are required to be reported & hence it is legal opinion under Income-Tax Law. Therefore, it should be furnished by Tax Advocates only.
Practice in Tax laws is different from that in civil and criminal matters. It should not be restricted to Advocates only at least upto level of Tribunals. A fish will definitely be a better swimmer than a person who has learnt swimming even if he is a champion swimmer. Hence Tax consultants who are practicing because of having worked in that department for more than ten years are better equipped than others who have learnt by doing CA or LLB. Out of CAs & Lawyers, those who are exclusively practicing in tax matters will be better than those who are practicing in all fields of law like specialist doctors.
Advocates know law but how they know accountancy?
Nobody is saying allow only CA’s to plead before tax authorities. There are tax practioners also. What we are saying don’t allow only advocates practice everything.
Some one was saying CA institute did not allow ICWA to use word “management”. There are numerous cases filed by advocates to restrict people from becoming advocates. Let us not talk how rotten is other profession is. Discuss, practice the ideas how we all can create a better professional environment, ensure development of our motherland and adher to our professiona ethics.
If all professionals, esecially advocates come together, corruption can be routed out from this country. Does anyone hass courage?
WHEN 5 CLASS OF PERSONS ARE AUTHORIZED TO PREPARE RETURN UNDER INCOME-TAX ACT, THERE IS NO JUSTIFICATION TO RESTRICT INCOME-TAX LAW AUDIT TO ONE CLASS OF PROFESSIONALS – HENCE CONCEPT OF INCOME-TAX LAW AUDIT BY ONLY ONE CLASS OF PERSONS NOT CORRECT. FURTHER THERE IS CONFLICT OF INTEREST ALSO. REASON BEING PERSON CONDUCTING TAX AUDIT FOR REVENUE IS ALSO APPEARING FOR THE SAME CASE IN SCRUTINY PROCEEDINGS.
WHAT RUBBISH
LIKE ADVOCATE NOT ALLOW TO AUDIT , CA ALSO NOT ALLOW TO ARGUE THE CASE BEFORE ANY DIRECT OR INDIRECT TAX AUTHORITY. WHY AUDIT IS REQUIRED ON THE COST OF DEALERS , DOES IT GENERATION OF EMPLOYMENT TO CA ?
the CA professionals are dominating the field and making the scenario for their exploitation and benefit ignoring the national interest. the business need of the country is versatile and different professionals shall be able to serve the business world upto their ability. Dominance by s single professional body in a field is never bring good to anyone except for that professional. Let many professional have the same privileges so that the business world will get the best service instead of monopolistic and limited consultancy.
i just want to quote here one of the worst made by ca body recently ‘recently ICWAI institute just requested the government to use the word ‘Management’ to thier name. but CA bodies was so unhappy and argued against ICWAI that they have no eligibility to use the word ‘Management’ along with their name. funny but true.
this is the approach of them and CA will never understand the national interest or other body professionals and they themselves believe as GODS.
It is correct family disputes need to be solve in family and outsider should not be allowed to interference in any family dispute. Head of family not demanded any certificate from his family member by putting undue financial burden on his own family income. Which Certificate is certified by outsider as like under section 44AB of income tax act 1961. If such outsider is considered as a family member than there is no need to pay remuneration to its own family member for his services. If Income tax department and assessees are family members than there is no need to pay taxes and penalty because in overall matter is related with family income. Whether money is retained by assessee or department don’t make any effect on family condition.
IT WILL BE LIKE DR MUST BE PATIENT TO TREAT PATIENT. NOT AGREEING WITH AUTHOR
The grievance/suggestion of Mr SYED MAHABOOB PEER , prima facie, may appear to be justified, to some one who is a beginner in the field. But the correct approach is not to forget that Income-tax Officials are also not allowed to appear before any High Court or Supreme Court ( because they are not law graduates) . They are allowed to appear only upto ITAT. Mr. SYED MAHABOOB PEER should not feel aggrieved because a CA is also allowed to appear before ITAT. Beyond that neither an income-tax official nor a CA is allowed to appear and practice.
Incidentally , it appears that Mr.SYED MAHABOOB PEER has not seen the curriculum of IRS nor their training methodology nor their faculty. He also forgets the immense variety of exposure of IRS. But that is only beside the point.
As per Chartered Accountant Act, 1949. Chartered Accountant conduct only Tax Audit,reason behind this Chartered Accountant have good knowledge about Accountancy, Taxation, Accounting Standered and respective their field. other person have good knowledge about respective field only his qualification and long experience. if those person have similar knowledge, it should not allowed for Tax Audit. But we can not allowed them because professional of every field respect of their qualification and knowledge can belive them. He belong any field, Chartered Accountant, Doctor, engineering and Advocate.
As per articles we discuss here:
Most of the disputes in a Family will be settled within the Family, and it will be extremely very rare to approach any Police Station or Civil Court. Likewise, the Income Tax disputes must ordinarily be settled in the Income Tax Family itself.
Above Referred Para has good idea. But greedy Bureaucrats and Professional some time misguide the assessee, demanding huge amount. It is very rare in Income Tax Department across the country there are settle any scrutiny case without money. If assessee can not pay according to officer, He face gross Miss-use of Law resulting this huge addition made by the assessing officer without any fact and law. Then this dispute settle by the qualified professional in Appeal, Tribunal and High Court and Supreme Court. Against any violation of Law Advocates always stand against this violation, ready for fight against unjust-ice. Which cases are settle in Tribunal, High Court and Supreme Court all tax professional and Income Tax Officer follow its.
Vipin Raturi
Advocate
When non CA income tax Commissioner/AC/DC/AO is capable of scrutinizing the certificates and documents filed Under the Income Tax Act, how you expect that all the departmental people should be law graduates?Kindly remember that and IAS/IRS officers who are appointed as departmental head in India are not the masters in the filed.An veterinary/agricultural/engineering/doctor/and horticultural graduates who pass IRS is appointed as head of Income tax department who has not passed CA.Many time it is very difficult to convince even the basic accounting concepts to them.If it so what is the use of the 44AB audit and certificates from the CA?Let the assessee choose his own tax consultant either CA/Advocate/ TRP/ITP etc, and there should not b e any restriction on the free practice in the filed of TAXATION as it is there in medicine.For example if a person needs surgery he will go to a Surgeon D or if he does not and has faith in Ayurveda or Unani or Homeopathic he will do according to his choice. Let the Central Government take a right decision at the right time and I hope the right time has come now by introducing the Tax Practitioners Bill.
BSK Rao is absolutely correct in his 2 mails
Why not tax only advocates? Why not computer engineers alone handle computers? Do not make Income Tax law as a Vedha restricted only to a specific class. Do you justify that a non lawyer need not know law and not be bound by it? Fine. Then no non lawyer can be accused.
(1) Indian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Therefore, authorised representative clause not required in any Indian taxation statute. Bar Council of India Vs A.K.Balaji [SLP(Civil)No(s)17150-17154/2012] Dt.4.7.2012 (SC) & A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) it was clearly held by Hon’ble Supreme Court & Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious & non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act. The constitution bench of Supreme Court of India in National Tax Tribunal case of Madras Bar Association Vs Union of India bearing No.150 of 2006 Dt.25.09.2014, it was ultimately held that Chartered Accountant to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. The verdict of Supreme Court is the declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution & contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution. Hence, Advocates alone are entitled to Practice, Plead and Act before the revenue authorities. On date, authorized representative clause under all Indian taxation statute has been subject to review of apex court and hence require deletion. Other than Advocates should appear before tax authorities under CPC/Evidence Act, against summons issued. If such appearance clause still retained in statute book of Indian taxation laws, situation may arise that order of assessing authority passed against the representation of other than Advocates become in-fructuous, bad in law, null & void. Further, such orders cannot be enforced/appealed. Power of attorney (Vakalatnama) to practice law can only be given to Advocates.
(2) Latest policy decision of learned officials in Finance Ministry, Govt. of India to expand the definition of “Accountant” to include related professionals in DTC-2013 read with delegated legislation Section 320(2)(iii) is highly appreciated. But, in order to involve all knowledgeable persons to improve/enhance compliance & revenue, Tax Practitioners Law required for India to enable all specialized professionals, including Advocates to practice taxation law in India. Our Central Govt. should come out with substantial legislation; introduce Tax Practitioners Bill covering all five class of tax law professionals of India. Such Tax Practitioners Bill should be introduced with “Preamble” stating that “Other than Advocates are also practicing tax law in India, in order to protect them & also in the interest of Govt. revenue, this Tax Practitioners Bill has been introduced”. Then such Tax Practitioners Law can not be struck down in view above court verdicts. US Treasury Department Circular No.230 for regulations governing practice before the Internal Revenue Service of Income-Tax Deptt. in USA & Tax Agent Service Act of Australia are very good examples for consideration of Ministry of Finance, Government of India to have similar Tax Practitioners Law in India also, to generate tax professionals for widening tax base & number of assesses.
(3) In view of the above facts & decision of Supreme Court, it is right time to have unified control & regulation of all players practicing taxation laws in India, Tax Practitioners Law is the need of the hour. Among Legal Practitioners, Cost & Management Accountants, Company Secretaries, Chartered Accountants and Income-Tax Practitioners, who wants to practice tax law in India, should mandatorily seek registration under Tax Practitioners Law, whatever their parent body says is immaterial & Tax Practitioners Law should mention the qualifications required to be possessed by all the five class of tax professionals. On date ample tax compliance work is there, but there is no required Tax Professionals to support voluntary compliance in Indian taxation laws. Further, “More persons in the line of tax practice leads to improvement in quantum of compliance & more revenue to the Government”. Tax Practitioners Law in the lines of “US Treasury Circular No.230” is well suited to India, required for India & also need of the hour to widen genuine tax base of assesses.
ASSESSING OFFICERS IN THE TAX DEPTT. CONDUCTING AUDIT IN SCRUTINY PROCEEDINGS ARE NOT CHARTERED ACCOUNTANTS, THEN WHY ONLY CHARTERED ACCOUNTANTS ARE AUTHORISED TO ISSUE CERTIFICATES IN ALL INDIAN TAXATION, WHICH IS ALSO ONE OF THE BURNING ISSUE THROUGH OUT INDIA ON DATE.