Case Law Details
In this case Shri B.D. Giri, ITP referred to section 288(2)(v) & (vi) of the IT Act and claimed that since he is retired departmental Officer, therefore, without any certificate of registration as ITP can appear before the Income-tax Authorities and the Tribunal. He has also admitted before us that though he is practicing in Gwalior, but he is not registered with the CIT, Gwalior. His claim is totally wrong and his conduct is liable to be impeached.
Section 288(2)(v) & (vi) provides the meaning of authorized representative who have passed any accountancy examination recognized by the Board or any person who has acquired such educational qualifications prescribed by the Board in this behalf. Section 50 of the IT Rules provides accountancy examinations recognized in case of departmental officers and such departmental examination shall be conducted by the CBDT under sub-section (4) of section 50 of the IT Rules. The educational qualification is also provided u/s. 51 of the IT rules. However, mere possession of educational qualification without conducting departmental examination by the Board itself is not sufficient to have any right to practice as Income-tax Practitioner (ITP in short). According to Rule 53, 54 & 55 of the IT Rules, the Chief Commissioner or the Commissioner shall have to maintain prescribed form to register ITP to whom certificate is issued. The person, who claims to be registered as ITP shall have to file proper application supported by documents to prove his accountancy examination recognized and educational qualifications achieved by him as per Rules. When CCIT or the CIT are satisfied that such person fulfills the requirement of section 288(2) of the IT Act, the ITP would be registered with the CCIT/CIT and a certificate of registration to practice shall be granted in his favour. The other provisions from section 56 & 57 of the IT Rules provides for cancellation of such certificate, which is not necessary in this case because admittedly, Shri B.D. Giri is not registered with CIT, Gwalior as he has not obtained any certificate of registration as ITP in his favour. The above provisions of the IT Act and IT Rules clearly prove that Shri B.D. Giri is not Income Tax Practitioner as recognized in the Income-tax Act and Rules. Therefore, without any certificate of registration in his favour under the above provisions, he cannot practice before the IT authorities and the Tribunal. Therefore, we warn Shri B.D. Giri to be careful in future. Copy of this order be provided to CIT, Gwalior for taking necessary action in the matter because the law would not provide any unauthorized person/representative to appear before the Income-tax Authorities or the Tribunal. In this view of the mater and the directions above, the appeal of the assessee is allowed for statistical purposes.
What or which is the examination conducting by the Board after possessing the educational qualification as per Section 288(2)(vi) of the Income Tax Act, 1961 sufficient to have any right to practice as Income-tax Practitioner (ITP in short)?
The Income Tax Section 288(2)vi) clearlyprovides that those persons who have acquired such educational qualifications prescribed by the Board in this behalf (as laid under Rule 51 of the IT rules)to practice as Income-tax Practitioner (ITP in short). And that, when the CCIT or the CIT are satisfied that such person fulfills the requirement of section 288(2) of the IT Act, the ITP would be registered with the CCIT/CIT and a certificate of registration to practice shall be granted in his/her favour. If without any certificate of registration in his/her favour under the above provisions, he/she cannot practice before the IT authorities and the Tribunal, if the law would not provide any unauthorized person/representative to appear before the Income-tax Authorities or the Tribunal, how CITs could refuse the applications (meant for Enlistment/Registration as Income Tax Practitioners) demanding earlier practice before the IT Authorities for not less than one year (as per Rule 55, which is actually inconsistant with Section 288(2)(vi) of the Act)?
Mr.Mandeep Singh has some personal grudge on Chartered Accountants. He is unnecessarily bringing comparison between advocates and Chartered Accountants. He has done the same w.r.t. article written by Mr.B.S.K.Rao. I request Moderators to have a check at this.
Good Judgement .
CA. Subhash Chandra Podder, FCA
Kolkata
05/08/2013
LM MAHUKAR V/S STATE OF MAHARASTERA
Such appearance by a lawyer or an accountant will be in the course of carrying on his profession of law or accountancy, as the case may be. It cannot be said that an accountant carries on the profession of law when he appears before the sales tax authority
After passing of the Advocates Act, only one class of persons is entitled to practise the profession of law, namely, advocates (Section 29). If the phrase ‘practise the profession of law’ is equated to appearance before the sales tax authority, in that event, a chartered accountant or a cost accountant or even a relative or an employee of an assessee will not be entitled to appear before a sales tax authority after the Advocates Act came into force
A.K. Balaji Vs. Government of India
(2012) 35 KLR 290 (Mad.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.02.2012
C O R A M
THE HON BLE Mr. M.Y. EQBAL, CHIEF JUSTICE
and
THE HON BLE Mr. JUSTICE T.S. SIVAGNANAM
W.P. No.5614 of 2010
and
M.P. Nos.1, 3 to 5 of 2010
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.
A.K. Balaji
.. Petitioner
versus
1. The Government of India, rep. by its Secretary to Government, Law Department, 4th Floor, A-Wing, Shastri Bhawan, New Delhi 110 001.
2. The Government of India, rep. by its Secretary to Government, Home Department, North Block, Central Secretariat, New Delhi 110 001.
3. The Government of India, rep. by its Secretary to Government, Finance Department, North Block, Lok Nayak Bhavan, New Delhi.
section 288(2) of income tax act 1961 just provide appearance before income tax authorities to justification regarding income tax returns & accounting entries.
But practice of Law no authorized representative u/s 288(2) is eligible. As per judgement of various courts.
In latest interim order Honorable Supreme court in A.K Balaji case & L.M MAHUKAR V/S STATE OF MAHARASTER
In which said if any practitioner is doing practice of law before income tax authorities then he couldn’t appear before authorities.
ONLY ADVOCATES ARE AUTHORIZED FOR PRACTICE OF LAW AS PER SECTION 29 OF ADVOCATES ACT 1961.