Advocate B.S.K.RAO

 (1) When the Deptt. is taking so much of security measure for e-filing of tax returns through only Assesses Digital Signature Certificates etc., person filing the return in the capacity of Individual, HUF and Artificial Juridical Person should only appear & produce records in support of return filed, against notice issued by the Deptt.

(2)  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 and Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious and non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act.

(3) 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 & Company Secretaries to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. In the instant case of Apex Court, it was also held that “In our understanding, Chartered Accountants and Company Secretaries would at the best be specialists in understanding and explaining issues pertaining to accounts”. Further, Chartered Accountants conducting Tax Audit for Revenue can not appear & act again for the same assesse in proceedings before revenue authorities. If explanations from Tax Auditor (CMA/CA/CS) required, they may be called upon by issuing summons under CPC/Evidence Act only. Because, all the procedures laid down in Civil Procedure Code followed in the course of proceedings before revenue authorities requiring only Advocates to appear on behalf of assesses.

(4)       On date, authorized representative clause under all Indian taxation laws has been subject to review of apex court and hence require deletion. 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.

(Author :–  B.S.K.RAO, B.Com, LL.B, MICA,  BDKRAO, Beside SBI, Tilak Nagar, Shimoga-577201 Karnataka State, MO     : 0-9035089036, E-Mail : raoshimoga@gmail.com)

Also Read-Why Tax Practitioners Bill Required For India?

More Under Income Tax

56 Comments

  1. sumedh says:

    Can an advocate be an auditor. I have read the BCI rules sec 47 and 48 of part II. I am not clear with it. Please help. Can an advocate carry on audit work along with his practice.

  2. Venkatasivakumar says:

    Rao, I really appreciate your half knowledge of law…tax audit …requries knowledge of income tax provisions for computation of liability to tax…the information is culled from Bank statements… And other accounting records..it’s a .pure accounting job which a lawyer is not equipped and absolutely incompetent to do…

    The audit is based on verification, of accounts prepared as per accounting standards.. and complying with all other legal matters

    S2(2) 2,3,4 of the ca act is very clear on the role of a CA who is the only competent person to do audit and accounting..

    Lawyer comes into picture only before tribunal or HC or SLP..

    the tribunal ismeant for speedy adjudication relying on evidence to be established more on facts

    but HC the matter involves the substantial question of law..on established facts

    For tribunal CAs are the base where as for HC their opinion is only an expert opinion ..while lawyer deals with law

    CS, CWA, are not competent as per legislation.. As they are meant for a specific purpose…which at present they are not able to do

    So your over extended interpretation of law.. Is at the best a wishful thinking, a nice fiction in Arabian nights can not stand the scrutiny of judicial review…

    NTT… Was quashed as UN Constitutional..
    So the obiter dicta is applicable to that act..it’s not a ratio …so you can’t keep on harping on that .

  3. ashish kamthania says:

    Dear Mr. B.S.K.Rao,
    Sir, This Is Very Good Attempt By the Principal Chief Commissioner Income Tax, Chandigarh to restricts Chartered Accountants/ Non- Advocates for practice of law in the course of proceedings before revenue authorities.

    They Allow Only enrolled Advocates are licensed to practice Law in India- Not to allow Chartered Accountants/ Non- Advocates for practice of law in the course of proceedings before revenue authorities falling under the jurisdiction of Principal Commissioner of Income Tax and Commission of Income Tax, Amritsar, Jammu etc.

    Ashish Kamthania,
    (BSC,PGDCA,LLB,LLM)
    Managing Director : TAX & LEGAL PROFESSIONAL PRIVATE LIMITED, RAMPUR UP INDIA
    Secretary : TAX ADVOCATES BAR ASSOCIATION, RAMPUR UP 244901 INDIA
    Residence : 23, Tilak Colony, Rampur – U.P. 244901 INDIA
    Office : Near Commercial Tax Office, Suraj Cinema Road, Rampur
    WhatsApp : 09258010105

  4. venkatakrishnan fca says:

    Sir, CAN A PRACTISING ADVOCATE PRACTICE AS AN "AUDITOR" I HAVE AN ADVOCATE IN TAMILANDU PRACTISING IN A SEMI URBAN CITY ADVERTISES AS MR.X.. aUDITOR AND ADVOCATE DEALINGA WITH TAX ADUIT, AUDIT, PF, ESI COPORATE FILING ETC., I AM NOT SURE WHETHER HE IS ALSO A CHARTERED ACCOUNTANT.
    WOULD BE GLAD IF YOU REPLY WITH REFERENCES.

    VENKATAKRISHNAN

  5. Paramjit Singh says:

    Why removing section 288(2). same provision also exists in other actsi.e Vat act, service tax act,central excise needs to be removed

    1. BSKRAO says:

      Ambiguity about inclusion of both litigious & non-litigious matter within the definition of “practice of law” crystal clear in the A.K.Balaji case of HC/SC. Therefore, other than Advocates can not practice Indian laws any more

      1. venkatakrishnan fca says:

        Sir, CAN A PRACTISING ADVOCATE PRACTICE AS AN “AUDITOR” I HAVE AN ADVOCATE IN TAMILANDU PRACTISING IN A SEMI URBAN CITY ADVERTISES AS MR.X.. aUDITOR AND ADVOCATE DEALINGA WITH TAX ADUIT, AUDIT, PF, ESI COPORATE FILING ETC., I AM NOT SURE WHETHER HE IS ALSO A CHARTERED ACCOUNTANT.
        WOULD BE GLAD IF YOU REPLY WITH REFERENCES.

        VENKATAKRISHNAN

  6. Rajendra kumar sharma says:

    माननीय उच्चतम न्यायलय के द्वारा “विधी व्यवसाय”अधिकारपूर्वक एडवोकेट एक्ट तहत एडवोकेट को करने का अधिकार होना निर्धारित किया ।
    पॉवर ऑफ़ अटार्नी एक्ट और भारतीय संविदा अधिनियम की धारा 182 से 238 और CPC का आदेश 3 के प्रावधानों को माननीय उच्चतम न्यायलय के द्वारा संविधान विरोधी या अप्रभावशील नहीं किया गया है वे सभी प्रावधान आज भी प्रभावशाली है । उक्त प्रावधानों के अनुसार कार्य/ एक्ट करने का अधिकार कानूनन रूप से अभिभाषक के अलावा अभिकर्ता एजेंट प्रतिनिधि को भी प्राप्त है ।
    अभिभाषक अधिनियम की धारा 32 का प्रावधान भी गैर अभिभाषक की पैरवी करने की अनुमति के सम्बन्ध होकर प्रभावशील है ।
    धारा 2 (क्यु) दंड प्रक्रिया संहिता के प्रावधान अनुसार गैर अभिभाषक को भी प्लीडर के रूप में अनुमति देने का कानून है ।
    पक्षकार स्वम् को कार्य और पैरवी (एक्ट व् प्लीड)करने का अधिकार है ।
    कुटुंब न्यायलय अधिनियम और श्रमिक कानून और सीनियर सिटीजन एक्ट सहित अनेको कानून में अनुमति प्राप्त किये बिना अभिभाषक को अधिकारपूर्वक विधिव्यवसाय नही क्र सकते है ।
    भारत के संविधान में प्रत्येक मौलिक अधिकार दिए अनुच्छेद 14 व् अनु.19 के प्रकाश में समग्र कानूनों के प्रभावी प्रावधानों के साथ साथ धारा 29 व् 33 अभिभाषक अधिनियम के प्रावधान पर विचार करते हुए । तर्क अभिमत देने की कृपा कीजिये।

  7. G.GIRIDHAR says:

    Why does the BCI prevent its members (Advocates ) who are also members of ICAI from obtaining COP from ICAI which the ICAI is willing to give to Advocates to sign Tax Audit. Should the advocates bank on knowledge or legal battle with various forums

  8. NAGARAJA HEGDE says:

    Tax laws are specilised subject,the practice of taxation requires specilised skill of accounting and Tax laws .those who has(Income Tax Pratitioner , ,advocate ,chartered accountant,Cost Accountant,Comppany Secetary) must be given authority to tax Audit,provided he has represented before the Taxation authority for last five years or more and represented cases before any income tax authority .Practice of power of Attorney exist even before advocate act passed.So ,Authority of power of Attorney must prevail.
    NAGARAJA HEGDE
    INCOME TAX PRACTITIONER
    BENGACHERY COMPLEX
    KANHANGAD-671315

    1. BSKRAO says:

      POWER OF ATTORNEY TO PRACTICE LAW CAN ONLY BE GIVEN TO ADVOCATES

      (1) 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. 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 (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. Therefore, appearance clause not required in statute books of any Indian laws. In the interim order of BCI Vs A.K.Balaji Dt.04.07.2012, Apex Court upheld the view of Madras HC that Indian Advocates alone entitled to practice law both in litigious & non-litigious matter and reserved the decision on the issue of foreign lawyers or law firms to visit India for temporary period on a “fly in and fly out” basis to advise their clients on the 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 & Rules. The verdict of Supreme Court is declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution and contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution.

      (2) 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 Accountants & Company Secretaries to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. In the instant case of Apex Court, it was also held that “In our understanding, Chartered Accountants & Company Secretaries would at the best be specialists in understanding & explaining issues pertaining to accounts & it fall purely within the realm of facts”. Chartered Accountants conducting Tax Audit for Revenue can not appear & act again for the same interested assesse in proceedings before Revenue Authorities (Due to Conflict of Interest). If explanations from Tax Auditor required, they may be called upon by issuing summons under CPC/Evidence Act only. Because, all the procedures laid down in Civil Procedure Code followed in the course of proceedings before revenue authorities requiring only Advocates to appear on behalf of assesses.

      (3) 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 authorities 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 appearance for Pleading & Acting (Practice of Law) before the Revenue Authorities 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 (Legal Practitioners) to practice law in India & take action for professional negligence. Non-Advocates neither licensed to practice law to enable his/her professional body to take action for professional misconduct against the directions of Income-Tax Deptt. U/s 288(5) nor the Income-Tax Deptt. could disqualify him/her for professional negligence. This incurable virus in the statute book of Income-Tax Act, require deletion of appearance clause for Non-Advocates.

  9. BSKRAO says:

    ONCE UPON A TIME THESE VESTED INTEREST OF SHIMOGA WERE LAUGHING AT MY POSITION (THAT TOO, WHEN I GAVE LETTER TO THE INCOME-TAX DEPTT. & THEIR ASSOCIATION ABOUT NON-AVAILABILITY OF EMPTY SLOTS FOR TAX AUDIT), ONLY ONE MAN IN THAT COMMUNITY PREDICTED & SAID THAT THE DAY WILL COME TO YOU MR.B.S.K.RAO, WAIT & SEE. I AM GRATEFUL TO HIM & GOD.

  10. Adv. Subhash Chandra Gupta says:

    When the issued any legal notice or summon by any department or court or used the word legal act or regarding revenue or others not present authorised representative or attorney, present only advocate who is registered state bar council advocate act 1961

  11. B.S.K.RAO says:

    (1) All Tax Professionals use software provided by the external vendors due to ease of usage, flexibility & many more options provided therein for uploading Income-Tax return. E-filing utility provided in website of Income-Tax Deptt. are used only by salaried class assesses. In software provided by the vendors, one can fill-up the return very fast on using earlier years data base of clients & can also avoid repetitive job of filling common fields both in Income-Tax return & Tax Audit Report. Further, to upload Tax Audit returns, DSC of CA & assesses with their pass word are required. Therefore, Non-CA Tax Professionals along with the assesses prefer to visit Chartered Accountants office to upload both return & Tax Audit Report of their clients. Here CAs charge extra for uploading ITR & we have to accept the same, because of monopoly & ceiling on tax audit. This is the main troubling situation prevailing on date, which Deptt. should understand. Due to T.D.Venkat Rao case (SC) only Chartered Accountant will conduct Tax Audit in Income-Tax Act. In view latest verdict in the case of Bar Council of India Vs A.K.Balaji (SC) Section 288(2) of Income-Tax Act require deletion. In the result only CAs will conduct Tax Audit & only Advocate will plead & act before the Income-Tax Authorities. Can anyone imagine the ill effect of this situation to Govt. revenue & troubling assesses to approach more than one Tax Professional to give compliance under Income-Tax Act. In fact, this type of situation prevailing in INDIA only.

    (2) In view of the above, now assesses, Non-CA Tax Professionals & CAs should join hands to upload Tax Audit cases. It is also indicated in e-filing website of Income-Tax Deptt. that in future, Cost Audit Report, Report under Central Excise & Service Tax has to be uploaded on verifying the same data of the clients again & again. I.e, in future following persons with pass word for their respective DSC should join hands to upload Tax Audit cases.

    (a)Assesse,
    (b)Non-CA Tax Professionals (DSC not required on date),
    (c)Chartered Accountant,
    (d)Cost & Management Accountant,
    (e)Auditor under Central Excise & Service Tax,
    (f)State VAT Auditor-VAT Practitioner (If added in future)

  12. B.S.K.RAO says:

    THIS IS MY PERSONAL QUESTION TO ICAI PRESIDENT SRI.RAGHU SIR. WHY ONLY 2% RESULT TO TAKE THE POWER OF MAKING 2+2 = 5 SIR, THAT TO WITH THE RESTRICTION OF WORKING IN THE AREA OF TRADING ACCOUNTS ONLY. IS IT A MEDICAL COURSE ?

  13. B.S.K.RAO says:

    THE WORDS “OR IN ANY OTHER LAW” IN SECTION 33 OF ADVOCATES ACT INTENDED TO COVER PERSONS REFERRED IN SECTION 55 OF ADVOCATES ACT, 1961. SECTION 55 OF ADVOCATES ARE REPRODUCED HERE BELOW:-

    Section 55 in THE ADVOCATES ACT, 1961

    55. Rights of certain existing legal practitioners not affected.—Notwithstanding anything contained in this Act,—

    (a) every pleader or vakil practising as such immediately before the date on which Chapter IV comes into force (hereinafter in this section referred to as the said date) by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920), or any other law who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act; 1[***] 2[(c) every mukhtar practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879, or any other law, who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act;

    (d) every revenue agent practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other law,] shall, notwithstanding the repeal by this Act of the relevant provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920), or other law, continue to enjoy the same right as respects practice in any court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date and accordingly the relevant provisions of the Acts or law aforesaid shall have effect in relation to such persons as if they had not been repealed.

  14. BSKRAO says:

    If we compare Section 29 & Section 33 of Advocates Act, we find that while Section 29 talks about only one class of persons who can practice law, Section 33 talks of compulsory enrollment of advocates to practice before a court or any other authority. So, only an advocate can practice law and he has to get enrolled with the Bar Council if he wants to practice before a court. This seems to be the interpretation of the two sections read together. However, in the opinion of the Court in the case of Supreme Court v Bar Council of India, there is another aspect of practice of law, that is, non-litiguous practice. Hence, a person who does not want to practice in court is not required to follow Section 33. But, practice of law includes non-litiguous practice also.

  15. mandeep says:

    As per INDIAN CONTRACT ACT Which contracts are not enforceable by law are void contract. No Indian act contains that POA for “ Practice of law” given to anybody except Advocates. It is crystal clear if we justified that authorized representative have cross examined to any witness before Assessing authority than such order can be declared null and void by Hon’ble courts.

  16. mandeep says:

    Sh. Bsk Rao Ji,
    You are absolutely right, attorney in fact means power of attorney given to do acts for principals. Attorney at law means PAO in favour of Advocate for “ Practice of law”. In India, Attorney in fact means PAO given to do specific acts for Principal and Attorney at law means “ VAKALATNAMA” given in favour of Advocate for “ Practice of law”.

  17. BSKRAO says:

    I THINK MANDEEP JI MADE RESEARCH ON POWER OF ATTORNEY (VAKALATNAMA). THEREFORE, I REQUEST BEFORE MANDEEP JI, WHETHER MY BELOW STATEMENTS ARE CORRECT OR NOT :-

    (1)Attorney in Law given only to Advocates……
    (2)Attorney in Facts can by given to any person……
    (3)Attorney in Law can only appear before revenue authorities….. (4)Attorney in Facts should appear before revenue authorities under CPC/Evidence Act only. If such person appear under Authorised Representative clause, order of revenue authorities passed against such appearance of non-advocates can not be enforced or appealed for the genuine reason that it amounts to passing of the order without giving an opportunity of being heard to assessee……

    I HOPE MANDEEP JI WILL CONSIDER MY REQUEST

  18. mandeep says:

    The term attorney-in-fact is used in several states of the United States in place of the term agent and should be distinguished from the term attorney-at-law. An attorney-at-law in the United States is a lawyer — someone licensed to practice law in a particular jurisdiction. The Uniform Power of Attorney Act employs the term agent.[2]

  19. BSKRAO says:

    THE WORD AUDIT MEANS VERIFICATION & DEMAND VARIED KINDS OF KNOWLEDGE. FURNISHING TAX AUDIT REPORT FORM NO.3CD IS A LEGAL OPINION ON AUDIT UNDER INCOME-TAX LAW ABOUT SECTION WISE WRONG CLAIMS. HENCE, IT HAS TO BE FURNISHED BY ADVOCATES ONLY (A.K.BALAJI & NTT VERDICT). AS THE AUTHORITY TO ISSUE SUCH LEGAL OPINION HAS BEEN VESTED ON ACCOUNTANTS, INCOME-TAX DEPTT. COULD NOT GET SECTION WISE WRONG CLAIMS IN FORM NO.3D TAR SINCE 1984 IN SPITE OF GUIDANCE NOTE OF ICAI (FINANCIALS) TO CONCLUDE QUALITY ASSESSMENT. THE FACT IS EVIDENT FROM REPLY OF DIT(S) AGAINST RTI STATING THAT SECTION WISE WRONG CLAIMS NOT CAPTURED IN THE SYSTEMS DIRECTORATE IN THE TAX AUDIT REPORT UPLOADED TO E-FILING WEBSITE OF INCOME-TAX DEPTT. FOR THE ASST. YEAR 2013-14.

  20. BSKRAO says:

    I AM BASICALLY A SCIENCE STUDENT. IN THE PROCESS OF SCIENTIFIC EXPERIMENTATION, WE USUALLY GET SOME RESULTS. HERE, MY QUESTION TO CBDT IS THAT WHY TAX AUDIT U/S 44AB IS STILL RETAINED IN STATUTE BOOK OF INCOME-TAX ACT, EVEN AFTER KNOWING THAT SECTION WISE WRONG CLAIMS NOT CAPTURED IN THE SYSTEM’S DIRECTORATE-AS PER REPLY RECEIVED FROM DIT(S) AGAINST RTI APPLICATION.

  21. B.S.K.RAO says:

    TO BE PRECISE, NTT WAS STRUCK DOWN ON THE GROUND THAT IT DOES NOT POSSESS THE CHARACTERISTICS OF HIGH COURT & CORE JUDICIAL POWER OF REVIEW VESTED ON IT – THIS IS UNCONSTITUTIONAL

  22. B.S.K.RAO says:

    CA/CMA/CS & ADVOCATES SHOULD SHARE THE POWERS VESTED TO SOME EXTENT FOR LIMITED PURPOSE OF INDIAN TAX LAW PRACTICE, THEN ONLY PROBLEM CAN BE SOLVED LIKE LIFTING FEATHER. GOVT. CAN ALSO EXPECT INCREASED REVENUE COLLECTION IN DUE COURSE.

  23. BSKRAO says:

    TECHNICAL MEMBERS CAN NOT DECIDE THE SUBSTANTIAL QUESTION OF LAW OR MAKE JUDICIAL REVIEW OF LAWS PASSED BY LEGISLATURE IS THE ULTIMATE THEME OF NTT CASE, BUT BCI VS A.K.BALAJI STANDS ON DIFFERENT FOOTING & STATES THAT, IN ORDER TO PRACTICE LAW BOTH IN LITIGIOUS & NON-LITIGIOUS MATTER, PERSON SHOULD BE ENROLLED AS AN ADVOCATE

  24. BSKRAO says:

    FOLLOWING ARE SOME GUIDELINE FOR AREAS WHERE CA/CMA/CS NEED TO CONSULT AN ADVOCATE AS PER THE VERDICT IN THE CASE OF MADRAS BAR ASSOCIATION VS UNION OF INDIA DATED 25.09.2014 – NTT VERDICT(SC):-

    Legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Teritoriality, Law related to Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes, and other Miscellaneous Provisions of Law, from time to time . The NTT besides the aforesaid statutes, out of which appeal will be heard by it, but will also have to examine a challenge to the vires statutory amendments made in the said provisions, from time to time. They will also have to determine in some cases, weather the provisions relied upon had a prospective or retrospective applicability. One should make analysis of intention of legislature, because it should not result in a situation arisen due to amendment carried out in 2nd Proviso to Section 44AB of Income-Tax Act in Finance Act, 2001.

  25. mandeep says:

    FORM 3CD is related with legal opinion on Income tax matters than how can Non- Advocate like CA’s are certifying form 3CD. It is not correct to debar Advocates from sign-of form 3CD.

  26. BSKRAO says:

    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. Tax Audit U/s 44AB of Income-Tax involves furnishing of section wise wrong claims in prescribed report Form No.3CD. Therefore, Advocates should only be authorized to issue Tax Audit Report U/s 44AB of Income-Tax Act. Our esteemed Bar Council of India vide its letter Dt.19.10.2012 gave representation to Central Board of Direct Taxes & Ministry of Law & Justice to authorize Legal Practitioners to sigh off Tax Audit Report U/s 44AB of Income-Tax Act.

  27. Sanjeev Vora says:

    Only those advocates who are also holding a degree like CA,CMA,CS should be allowed since CA,CMA,CS are passing very tough examinations and they are better equipped so far as matters of finance are concerned.
    CA,CS,CMA who is more competent and accordingly appointed by the client can/should be allowed even if he is not possessing a degree in law since the client has more confidence in him.

  28. MANDEEP SINGH says:

    Mr. Sathyanarayana ji,
    You rightly explained, when Non- Advocates appearing on behalf of assessee than it is a contract. But sir, Which agreements not enforceable by law are void contracts as per Indian contract act 1872 as explained below:

    g) An agreement not enforceable by law is said to be void:

    According above clause of the contract act POWER OF ATTORNEY in favour of Non-Advocates for ” Practice of law” is a void contract. Because no Indian law permits any person for ” Practice of law” except Advocates. If assessee gives power of attorney to any other person for ” Practice of law” then it will be void contract. As like any person can’t give power of attorney for his “surgery” to any person except a surgeon.

  29. U.D.VENKATESH says:

    Manish Sachdeva Sir,

    Yours claim is reasonable Sir. I too agree with your views subject to following restrictions:-

    Person conducting tax audit for revenue should not be allowed to represent the same assesses. Because, it amounts to Advocate representing both petitioner & defendant, which is prohibited (This issue supported by many court verdicts). This is where CAs are going wrong.

  30. Sathyanarayana says:

    Dear Sir,
    Authorised Representative means a person authirised to enter in to contracts representing another. The Goverment enforcing Tax laws mainly for the purpose of revenue from the citizens anot for enforcing any pain law. As a policy measure tax laws are passed in the parliment and imlpemented. The tax officers are authorised representatives of the government and any person can represent the assessee having authorisation before the tax officers. If only advocates can represent the assessee then only advocates should represent the government and the tax collection will become legal issue and collection of each rupee of tax should be colleted through court case.

    If cooking profession gets more money and power, these adocates pleads that cooking should be practiced only by advocates and they demand a law of cooks (Crooks!!!) should be passed in the parliment.

  31. B.S.K.RAO says:

    Ramesh Sir,

    Even the Govt. is waiting for finality of BCI Vs A.K.Balaji case to act in the matter. Because Income-Tax Deptt. is also one of the party in the case.

  32. B.S.K.RAO says:

    ANAND SIR,

    IF YOU LOOK AT THE DEFINITION FOR “PERSON” REFERRED IN PROSECUTION CLAUSE IN THE SAME INCOME-TAX ACT, YOU WILL COME TO KNOW WHO IS LIABLE FOR PROSECUTION UNDER INCOME-TAX ACT & THE INTENTION OF LEGISLATURE AS WELL.

  33. B.S.K.RAO says:

    ANAND SIR,

    OPINION OF SUPREME COURT OF NEW JERSEY, USA – LAWYERS/ADVOCATES CAN PRACTICE BOTH LAW & PUBLIC ACCOUNTS – AS ALL THE MATTERS ULTIMATELY SETTLED BEFORE COURT OF LAW, LAWYERS/ADVOCATES REQUIRED TO KNOW EVERY THING, EVEN MEDICAL JURISPRUDENCE.

    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…..”

    PRACTICE OF LAW PREROGATIVE POWER OF ADVOCATES, BECAUSE PENAL ACTION PRESCRIBED U/S 45 OF ADVOCATES ACT. WHEREAS PRACTICE OF COST, FINANCIAL & MANAGEMENTS ACCOUNTS, ONLY POWERS VESTED ON RESPECTIVE PROFESSIONAL BODY.
    THIS POINT SHOULD BE NOTED BY EVERY ONE IN INDIA.

  34. Manish Sachdeva says:

    If this goes to representing before Tribunals and Courts, maybe lawyers rather competent lawyers should get edge. But in case of jurisdictional offices, everyone, not just CAs/CSs/Advocates should have to right to appear.

  35. mandeep says:

    Section 288(2) is given only right to appearance before assessing authority and it is wrong to conclude that ” Representatives” also authorized for ” Practice of law”.

  36. ch. mallikarjun dev says:

    It is absolutely necessary to preserve the sanctity of legal profession as emphasized once again by the Apex court in Madras Bar Association Vs UOI. it is for Union Govt. to take consequential steps immediately to safe guard the enforcement of law and to avoid infringement of law by other than law professionals. I strongly support the Authors observations.

  37. mandeep says:

    It is my strong view ” Appearances clauses” under various tax laws should be deleted, not only for quality in legal advice but it is also required to protect financial interests of assessees. Any wrong legal advice by NON-ADVOCATES may be result huge financial loss to assessees.

  38. mandeep says:

    “substantial question of law” need to decide at initial level before assessing authority. “Practice of income tax law” can’t be confined only to mere reading of income tax law. “Practice of income tax law” depends on various laws like LOCAL LAND LAW, PROPERTY TRANSFER ACT, HINDU LAW,NEGOTIABLE INSTRUMENT ACT,EVIDENCE ACT,IPC ACT, CPC AND CRPC etc. Any wrong legal advice before assessing authority or wrong interpretation of laws before AO will sustain in appeals before Hon’ble HC and SC.
    If Non- Advocates are permitted for ” Practice of law” u/s 288(2) of income tax act then any wrong legal advice by non- law professionals may be result in huge financial loss to the assessee before hon’ble courts.

  39. S PRAKASH says:

    sir,
    I agree with the views of Mr. BSK Rao,but it is a settled issue and why the Central Government or the TWO MAN ARMY OF CBDT is not taking any concrete decision? Why the issue should kept open for years?At least the CBDT should be ignored and the DYNAMIC GOVERNMENT should take timely action.

  40. CA.V.Ravindran Salem says:

    As per this SC order, no CAs are entitled to appear even before IT authorities in case of scrutiny etc. Our CA profession practice scope is fully restricted because of this decision. Whether our CA institute will take necessary steps to modify this order? All CAs practice is going to be in trouble because of this order..

  41. Anand says:

    if this being the case, then the advocates should sign the balance sheets, tax audit reports and clauses for imprisonment in the income tax act and other acts should apply to them…..

  42. Nem Singh says:

    Chartered Accountants and Company Secretaries participate in finalization of accounts and reports etc as required under the relevant Acts (conducting Tax Audit) then how they act again for the same assesse in proceedings before revenue authorities because they never argued the issue that goes against their report and benefited to the assessee ie they always protect their report not the assessee. It is true that for explanations from Tax Auditor (CMA/CA/CS) required, they may be called upon by issuing summons under CPC/Evidence Act only and to justify the report.

  43. Sanbarta Koley says:

    It seems a bit surprising to me that people expect a judge who comes from the law fraternity to pass any order against lawyers. Then again one never knows.

    I am no lawyer but I think the decision of who to appoint as authorized representative should be left to the parties. If someone thinks a chartered accountant or even a graduate will be better be able to represent themself before the courts they should have the freedom and liberty to appoint such a person to represent them.

  44. Vipin Raturi says:

    The constitution bench of Supreme Court of India in National Tax Tribunal(NTT)case of Madras Bar Association Vs UOI.It was ultimately held that FCA & FCS to represent a party to a appeal before NTT, unconstitutional and unsustainable of law. Constitution bench of Supreme Court rejects the National Tax Tribunal contentions on that grounds that FCA AND FCS Would the best of specializations in understand and explaining issue pertaining to accounts. While number of advocate across the country practicing in Direct and Indirect Tax Laws before revenue authorities, High Court and Supreme Court of India. They never face these kinds of problem. This is land mark judgment against the such law makers whom are favouring particulare of profession.

  45. CA Shyamasundar says:

    This one is absurd. Why a professional cadre of advocates are feeling so insecure? Every professional can only retain their clients through quality service. This looks to be a coercion where everyone are supposed to go to advocates alone. Everyone is supposed to be given a fair chance.

  46. NARENDRA NATH SEN says:

    when ever law claearly speak how authorised representative practice before variouse taxing authrority it is to be clearly speak to our apex court and apex court is responsiable these type of law practice ie authorised representative act may be amended

    1. Venkatasivakumar says:

      Rao, I really appreciate your half knowledge of law…tax audit …requries knowledge of income tax provisions for computation of liability to tax…the information is culled from Bank statements… And other accounting records..it’s a .pure accounting job which a lawyer is not equipped and absolutely incompetent to do…

      The audit is based on verification, of accounts prepared as per accounting standards.. and complying with all other legal matters

      S2(2) 2,3,4 of the ca act is very clear on the role of a CA who is the only competent person to do audit and accounting..

      Lawyer comes into picture only before tribunal or HC or SLP..

      the tribunal ismeant for speedy adjudication relying on evidence to be established more on facts

      but HC the matter involves the substantial question of law..on established facts

      For tribunal CAs are the base where as for HC their opinion is only an expert opinion ..while lawyer deals with law

      CS, CWA, are not competent as per legislation.. As they are meant for a specific purpose…which at present they are not able to do

      So your over extended interpretation of law.. Is at the best a wishful thinking, a nice fiction in Arabian nights can not stand the scrutiny of judicial review…

      NTT… Was quashed as UN Constitutional..
      So the obiter dicta is applicable to that act..it’s not a ratio …so you can’t keep on harping on that .

Leave a Comment

Your email address will not be published. Required fields are marked *

Search Posts by Date

October 2020
M T W T F S S
 1234
567891011
12131415161718
19202122232425
262728293031