| COURT: | Supreme Court |
| CORAM: | A.K. Sikri J., J. Chelameswar J., Jagdish Singh Khehar J., R.F. Nariman J, R.M. Lodha CJI |
| SECTION(S): | 225, 226, 227 & 323B of Constitution of India, under Article 224A |
| GENRE: | Domestic Tax |
| CATCH WORDS: | NTT |
| COUNSEL: | Arvind Datar |
| DATE: | September 25, 2014 (Date of pronouncement) |
| DATE: | September 25, 2014 (Date of publication) |
| AY: | 2005 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| The NTT Act “crosses the boundary” & is unconstitutional. CAs/CSs are specialists on accounts & facts and are not capable of arguing/ deciding ‘Substantial Questions Of Law’ | |
The Full Bench of the Supreme Court had to consider whether the National Tax Tribunals Act, 2005, which sought to take away the jurisdiction of the High Courts in tax matters was constitutional. The Full Bench has struck down the entire Act as being unconstitutional on the ground that though “tribunalization” has been allowed subject to safeguards, the NTT Act “crosses the boundary” and “encroaches the exclusive domain” of the High Courts. In the course of the judgement, the Supreme Court had to consider whether Chartered Accountants could be appointed Members of the NTT and whether s. 13(1) of the Act which permitted Chartered Accountants to represent a party to an appeal before the NTT was valid in law. It also had to consider the application by the Company Secretaries that they are equal in all respects to the CAs and should also be permitted to appear and plead before the NTT. HELD by the Full Bench:
A perusal of the reported judgements shows that while deciding tax related disputes, provisions of different laws on diverse subjects had to be taken into consideration. The Members of the NTT would most definitely be confronted with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Territoriality, 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, will not only have to interpret the provisions of the three statutes, out of which appeals will be heard by it, but will also have to examine a challenge to the vires of statutory amendments made in the said provisions, from time to time. They will also have to determine in some cases, whether the provisions relied upon had a prospective or retrospective applicability. Keeping in mind the fact, that in terms of s. 15 of the NTT Act, the NTT would hear appeals from the Income Tax Appellate Tribunal and the CESTAT only on “substantial questions of law”, it is difficult for us to appreciate the propriety of representation, on behalf of a party to an appeal, through either Chartered Accountants or Company Secretaries, before the NTT. The determination at the hands of the NTT is shorn of factual disputes. It has to decide only “substantial questions of law”. In our understanding, Chartered Accountants and Company Secretaries would at best be specialists in understanding and explaining issues pertaining to accounts. These issues would, fall purely within the realm of facts. We find it difficult to accept the prayer made by the Company Secretaries to allow them, to represent a party to an appeal before the NTT. Even insofar as the Chartered Accountants are concerned, we are constrained to hold that allowing them to appear on behalf of a party before the NTT, would be unacceptable in law. We accordingly reject the claim of Company Secretaries, to represent a party before the NTT. We simultaneously hold s. 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, as unconstitutional and unsustainable in law.
i fully agree with the full bench, as its verdict in tune of logic of law, CAs/CSs are okay as far as facts and accounting facts but they certainly cannot interpret laws as also conflict of laws which conflicts increase day by day due to law makers themselves are not clear what law they are making, that way enormous confusion confounds. See Indian constitution itself a best drafted constitutions of the world, as it is a potpourri of USA/Australian/UK/Irish/canadian/USSR constitutions, so even best legal intellects many a time falter in interpreting the statutory interpretations, as law makers only intention alone serve no purpose when a statute is tested on the anvil of constitution of India besides other irrational constitutional amendments which are 100+ in number which served some interest or the other but if they were just statutes a lot by now would have been declared null and void or faced doctrine of severability.
How can one expect just accounting professionals could fit in just because they might hold an LL.B or BL degrees, after all these degress today depend upon just some university examinations which examinations really do not examine the competency on application of various conflicting laws.
so i fully endorse the full bench opinion on representation at NTT which only examines only the questions on laws involved with real test on the anvils of constitution.
if you yourself admit that the legal experts also sometimes falter in interpreting the law, then the lawyers should be first barred from appearing. this is because, if they themselves dont understand their law, then how do they expect CAs and other professionals to interpret the law correctly?
If different view points r possibe due 2 complexity n bad drafting of law , it does not mean lawyers r at fault. Even CA institute recognises d importance of lawyers. Why CA institute engaged a lawyer 2 represent it’s case before d apex court. It’s President, Secretary or a CA could have represented n saved d coffers of d institute.
CAs should stop throwing mud at other professionals.First put ur house in order n enhance ur credibility.
See d recent developments -CAG Report castigates CAs 4 faulty reports causing huge loss 2 d exchequer n for exceeding the limits for audit fixed by d institute , ITAT passes strictures on CAs 4 giving a bad report on TP reflecting utter lack of knowledge, abt 6 months back ITAT holds that CAs r losing grip on tax laws – CA institute promises 2 get d remarks expunged but so far nothing done , ET publishes an article a month back reporting that CAs in Kolkata r creating shell cos. 2 channel black money.
Sab ek ho gaye…….. CA/CS ke khilaf. Apni prabhu satta banaye rakhi.
Dr. Balakrishnan himself accepted, LLB degrees are not a guarantee of competency. So, how this full bench expects that Advocates are only competent to appear.
Only after several years of law practice say nothing less than ten years an advocate with a good law degree fom National law schools may be able to better handle than any CA/CS as CA/CS is good accounting professionals and so right on facts but interpretation of law is a different animal altogether, so all advocates cannot get good legal practice except some really dedicated hard work on laws please.
Some CAs/CSs with a law degree is still holding Bar council membership and regularly practicing at tribunals and High courts are still allowed to appear is the spirit of the judgement if one carefully reads the verdict of hon SC.
it is wise on the part of such CAs/CSs even with LL.B degrees to tell their clients as far as questions of law is concerned they desist as their own competency on interpretation of complicated conflicts of laws and testing on anvils Indian Constitution being highly tricky and these accounting telling with humility would definitely increase respect to these professionals to better levels, as these professionals i believe want their clients to succeed after all facts of the case based on accounting facts assessed by them only lead to questions of law issues.
Clients invariably work on accounting professional competencies on accounting only, is it not!
Only after several years of law practice say nothing less than ten years an advocate with a good law degree fom National law schools may be able to better handle than any CA/CS as CA/CS is good accounting professionals and so right on facts but interpretation of law is a different animal altogether, so all advocates cannot get good legal practice except some really dedicated hard work on laws please.
Some CAs/CSs with a law degree is still holding Bar council membership and regularly practicing at tribunals and High courts are still allowed to appear is the spirit of the judgement if one carefully reads the verdict of hon SC.
it is wise on the part of such CAs/CSs even with LL.B degrees to tell their clients as far as questions of law is concerned they desist as their own competency on interpretation of complicated conflicts of laws and testing on anvils Indian Constitution being highly tricky and these accounting telling with humility would definitely increase respect to these professionals to better levels, as these professionals i believe want their clients to succeed after all facts of the case based on accounting facts assessed by them only lead to questions of law issues.
Clients invariably work on accounting professional competencies on accounting only, is it not!
Hope u understand what is a duplicate sir!
If u really go through u would understand the depth of the answer if u r really a good lawyer sir!
In law every word counts!
IMPROMPTU (tentative Reaction)
On the first blush, the Judgment has been delivered, and particularly some of the cryptic observations therein have come to be made, not a day too soon. In one’s perspective, it has come at a very opportune and appropriate point in time. In that, the judicial views, selectively, might be made a conscious note of, and full use of for guidance, by the men in governance, so also the legislators, to mindfully deliberate and decide how best , in the “larger national/societal interests”, the entire ‘legal system” , in its most comprehensive sense / all embracing meaning, could be impartially evaluated and ideally revamped; of course, in as feasible a manner as human intelligence and integrity (in profound sense) be expected to permit, but with the sole aim of restoring the fundamental ‘objective’ of any legal system and thereby what the age old concept of “law and order” signifies . In short, the time is not but fully ripe now for taking seriously the “right signals” transmitted by the highest court of the nation, to strive for and accomplishing the “course corrections” – deliberately being short (over?)sighted hence remained long outstanding.
(Left open wantonly, with a fervent wish / Invitation to EDIT )
Dear Sir, as discussed above, LLB degree is not a guarantee to decide Substantial Question of Law. Likewise CA/CS degree is also not a surety. I want to apprise you that in CA/CS curriculum also Interpretation of Statutes is taught in depth. Further at least 80% of the laws pointed out by SC Judges viz Company Law, Law of Partnership, Law related to Territoriality, 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, are covered in CS curriculum. In CA Curriculum, Company Law, Law of Partnership, 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 are covered in depth. Both CA/CS curriculum are designed to instill expert knowledge in student. CA Institute is governed by CA Act, 1949 hence a Govt Body. Likewise CS Institute is governed by CS Act, 1980 hence a Govt Body. On the other hand 80% of the LLB is taught in Private Colleges.
Question involved is not the curriculum, it is the knowledge of particular of statute which prevails. A mere LLB degree could not guarantee the knowledge of Hindu Laws, for example and likewise a CA/CS degree could not guarantee the knowledge of Societies Registration Act. It depends on particular guy.
Here comes the question of Basic Knowledge and Core Competency. Any professional, who has competency in any law should be free to appear before any Court.
A blanket judgement in favour of Advocate appears to be biased.s
Yes , Mr. Agrawal is right
Mr Sachin Agarwal u have stated a large no of wrong facts in ur observations which r reqd 2 be corrected.Like CA/Cs, LL.B is also governed by a central Act called the Advocates Act. 95 % of legal education is provided by govt owned institutions .
There has been a revolutionary change in d field of legal education in d last 2 decades with the setting up of National Law Universities ( by d Central Govt) which have been set up on d lines of IITs n IIMs . Students get extensive training in diff branches of law n court room procedure. They get instant job fm legal firms n corporate sector n d pay scale is at par with IITians / IIM graduates. Some also join sr councels n get training in litigation pra tice. All d colleges imparting ll.b r affiliated 2 bar council of india , a statutory body under d Advocates Act. Traditionally also all d LL.B holders who desired 2 practice in a court of law had 2 undergo vigorous training under a senior lawyer specialist in a particular branch of law for a long period with little or no income. This is what is called ” school of hard knocks ” as per Fali Nariman eminent jurist. What emerges thereafter is for all 2 see. They r d most sought after professionals. On any discussion on issue of national importance, their participation is a must on a national channel. Whenever there is a violation of constitutional right of a citizen n excesses
committed by the executive , u need d help of a lawyer. Even d CA n CS institute were represented by a very sr. Advocate who fought tooth n nail 4 d intt. of his clients forgetting 4 a moment dat he is pitted agst his own fraternity of lawyers.
My first question is why both d institutes took d sevices of a lawyer when they could have contested d case themselves through one of their members as there is no bar in representing one’ s own case. According 2 u CAs n CS r competent enough 2 argue in a court of law as they study various legal subjects including interpretation of statutes (IOS). U have made another factually wrong statement dat U have IOS in ur curiculum. I have many frnds n some CAs working under me. This subject is not there in ur curiculum. Tell me do u have subjects like CPC , constitutinal law ( For ur information NTT was to have a jurisdiction of a high court as such even writ jurisdiction). Tell me how many CAs/ Cs have been trained 4 appearance before a high court. I think none. For ur information there r certain ethics/ procedure reqd 2 be followed 4 appearance before a court n NTT was 2 work like a high court. Mere knowledge of income tax n some commercial law is not enough.
Though ITAT is strictly not a court n CAs r allowed 2 appear before it, instances have come 2 light wherein ITAT has recomended disciplinary proceedings agst CAs by d institute for commission of grave errors of procedure/ ethics / lack of knowlege. Those decisions r in d public domain n have been reported by itatonline. U must be thankful 2 d SC 4 being saved fm such humiliation in future.
As for ur observation abt d ability of LL.B holders to argue/decide substatial questions of law (SQL), 4 ur kind information all d SQL in this country has been adjudicated by d honble judges of high court n supreme court ( all ll.b holders n none CAs ) with d assistance of lawyers ( again all ll.b holders) . Needless to say d questions decided have rendered substatial justice n r of highest degree.
Last but not d least, Mr Sachin u have made urself vulnerable 2 contempt of court n disciplinary proceedings by ur institute by accusing d ho ble SC of biasness due 2 ur utter lack of knowledge abt d respect 2 be accorded 2 d courts whose impartiality is beyond doubt.
To reassure self as to my understanding of the SC verdict (OPEN TO CORRECTION, if were wrong):
The verdict, as read and understood, is primarily against the IT Act providing for the setting up by the Government, of a National Tax Tribunal (NTT) to take up/over and handle all tax-related matters, in place of high courts as at present; so that decisions on tax disputes pursued beyond the ITAT stage could be expedited. So far as is seen, the competence or otherwise of professionals other than ‘law practitioners’ (enrolled as Advocates) up-to /including the ITAT stage does not seem to have been agitated, even remotely, so as to say to have been adjudicated upon.
great when we read opinions here on this site. sirs, all of you great how the ICAI OR UNIVERSITiES or Bar councils contributed to real logical law system by deductive logic method even courts since 1950 on!
For example A dog is an animal; Man is also an animal; Dog = Man or Man = dog do we agree? why we do not?
Dog is most faithful animal; Man is a most unfaithful animal; Though are animals animal world cannot accept Man as a most faithful animal, that way Man how true it is, indeed man is an animal but why does not accept as animal?
Reason is he is the worst of all animals so animal world cannot accept this man as an animal why because he is trying to affect all animals and all beings as also very Nature by his so called intelligence which intelligence is destructive to all why even to himself.
How do you call him cultured and civilized;
You can see he makes a broad spectrum of a constitution but he never follows by his clever behavior of being a law maker and the strategy is his laws are the most conflicting which he himself solve unless his own conflicting laws are declared void ab initio by judicial review. S judicial review came into being to test his so called statutes when tested on the anvils of his own Constitution, how far courts did that job you will note judicial reviews in several ways said the courts have to least interfere with this man’s law maker statutes, when so courts have decently failed in its judicial reviews, just because interpretation of statutes are such they are at at very nascent stages,
But when i read CAs r others study in depth the interpretation of statutes what a self defeating perception of CAs when lawyers after having become judges still to be in perfect understanding of interpretation of statutes so they limited way apply under judicial review.
Your law makers basically devoid of deductive logic but judges cannot afford to that level of Law makers as also so called all professions,
Lawyer is failing today ro a large extent just because they lost touch with deductive logic.
worse still others just because they do not have deductive logic in their professions just because they all work in a most docile way work with useless statutes which statutes cannot be called statutes at all in real sense as these statutes do not pass under the Constitution which this man himself made when so what would you call this so called experts in man?
similarly you created destructive weapons of severe destruction by so called scientific brain what result you got you created Saddam Husseins and you call him most dangerous so too terrorists would you accept truth that you as a great law makers created destruction with the great so called scientific sense which had created a menace of destroying your own miliitia as millions died thanks to over emphasis of great sciences of destructive studies, in fact worst terrorists is your own scientists who made Saddams and Al quidas …basically man is a psychotic in fact but he calls others psychotic as a mad man calls other men on roads as mad men.
where you need to be put better first decide.
It is essential LLB courses need not study all these so called laws abut they need to be essential logicians so in ancient india we called them as TARKA SASTRIS so you need to be great deductive expert if you are a lawyer How will you be a logician is the essential need n that basis you have to create Legal studies, but you ut all useless laws to read and waste one’s logical times in the class rooms, that way you mad more chaff less grain in all these professions and as such if chaff is taken near fire what would happen?
All you could do make the students of LLB courses to test the so called statutes created by so called lawmakers on the anvils of constitution you only created, if the so called fails in the test then recommend to severe such statutes from statute books and move the courts first test the statutes whether statutes pass the first test if not simpy declare void ab initio that way cut the law makers into size that wrk s the intended mechanism of judicial review!
whether courts did, whether universities did being main players in education, leave alone all these so called associations!
soon things get sensible shape!
Wrt the SC’s reported observation >”…. We simultaneously hold s. 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, as unconstitutional and unsustainable in law.”
To share own independent perspective: The Court , of course, has gone into / dwelt upon the validity or otherwise of some of the sections in the scheme of the NTT e.g. sec 13 (1) ; and made certain observations . Even so, if analyzed closely, the better view to take,- contrary to the one projected/being canvassed in some quarters,- will be THIS: The validity, legal acceptability, etc. of those sections have been argued/discussed, at some length. But the court has done so, only in the course of and for deciding the principal issue; that is, whether the concept of NTT has a strong foothold, to firmly stand on, so as to be upheld as vires the Constitution. Even if perceived with a different stroke, to say to the effect or suggest that the SC has not borne in mind the basic reality that once the scheme itself is struck down as ultra vires, – as has happened, – the rest of the discussion would pale into insignificance /be rendered inconsequential, and are bound to automatically fall like a pack of cards, would be, to put it in the least offensive manner, tantamount to offending the judicial intelligence.
As a CA, I think that whatever may be the fate of NTT, but the remarks issued for CAs and other professional are demoralizing.
CAs are better equipped with Commecial Laws than an any advocate. They have taught businesses to comply all legal requirements in a judicial manner.
But, Advocates have failed to teach people of India for legal compliance.
CAs have not been failed, but Advocates have been failed?
If we lift the curtain, we will find that a lobby of Advocates do not want any other professional to enter into in the field of law. And I believe there are only a few of such people. This is the question of justice, and a common man should be left to rely on whom he believes. Competency will prevail. Deductive method of selecting only a particular breed in the field of justice is not warranted.
Remark was made: how can CA be expected to understand intricacies of law? Do Advocates understand intricacies of accounts. Do all the judges understand all accounts all laws? This is not justice.
Advocates if good they never claim like any other professionals that they are as good as in their profession in thelr’s profession. Fact is advocates are just logicians only. so in those days every degree like BA, BSc ued to have part 1 called Language and literature, part 2 their own language and literature and part 3 the subjects u specialize in general level.
that means you gpt some grip on two languages and their literature that helped you know the society you live without reasonable knowledge of society you cannot become a reasonable logician please.
Accounting is just some arithmetical exercise and so nt much logic is there like very good pure mathematics as mathematicians were and are good logicians and a lt of mathematics graduates really out did well in law then too.
Logic is foundation of Natural law as man is a natural product but many times lacks logic so he was advised to have an advocate to support him in courts of law though the petitioner himself can argue the matter himself without any one’s assistance.
Another fact the petitioner knows where his shoe pinches not others unless one is a good logician please.
so here no profession is downgraded but just facts are brought out only in regard to logic.
Every other profession has an edge in its own field so every one need to accept that way Lakshmana Rekha is drawn that is called a law of limitation…can an infantry soldier be an artillery man unless he gets duly trained else the artillery would get wasted that means hat an expense it is!
But these days no mathmetics is taught in any LLB. If logic is the only concern, let us chose Netas (Politicians) etc from your society for representing a case. Advocates or CAs will not be required. Politicians have logic for every thing.
By the way Mathematics is taught in CA Foundation Course these days. It is taught ever since 1949.
sorry what poor ability of understanding commentators understand even one or two paragraphs of my comments. great CAs!
The judgement has been delivered by a constitutional bench of 5 judges comprising of jurists like N Nariman. In my opinion this is an excellent judgement and should be respected by one n all and should be seen in wider perspective rather than on narrow considerations. It must be noted that NTT was sought to be created 4 lessening the burden of high courts n for that matter high court’s jurisdiction in tax matters was sought to be hived off. As such, only lawyers were competent to appear n argue before it as it was required to pronounce verdict on substantial questions of law n violations of constitution of India. Lawyers have in their curriculum subjects like constitution of India , interpretation of statutes , civil procedure code n r trained in court room procedure n decorum. These subjects n training r missing in the profession of CAs & CS. Bench has rightly held CAs are experts in accounts. No doubt some CAs do perform well before the quasi judicial authorities like ITAT n CASTAT but it must be noted that they r not courts but are fact finding bodies & as such do not require the expertise of a lawyer though many a times strictures r passed on CAs appearing before it 4 not conforming to d standards required of them ( see the latest case reported by itatonline abt a week back where in the order written by d Accountant Member – a CA himself , strong strictures have been passed against the CA concerned and the CA institute has been asked to initiate disciplinary proceeding agst the CA).Such instances are galore. Thus, NTT was a totally misconceived piece of legislation n would have made CAs n CS more vulnerable 2 disciplinary & contempt proceedings for their lack of knowledge & training in court procedure & constitutional law. Govt & the professionals should appreciate that every profession has a role charted out and one should not impinge into each other’s periphery. A person cannot be allowed to conduct surgery on a human body even if he is a doctor unless he has necessary qualification in surgery & training in the said field.
pl note mere obtaining a LL.B degree does not make u lawyer. After obtaining d degree a lawyer has to join the ” school of hard knocks” as Fali Nariman, an eminent jurist says in his book “Before the memory fades”. The quality that emerges therefrom is for all to see. They r the most sought after professionals. Watch any news channel !
Probably there are biased reasons for NTT knocked down. Some people felt that a new breed will enter into their profession.
Government felt that CA/CS are competent to appear, because NTT was formed for the purposes of Income Tax. Most of the CAs know Income Tax very well and other commercial taxes also. Advocates were also welcome at NTT. Tax Payer, especially, Business Class, who are directly linked to economy, was being saved from the long haul, expensive and delayed Judgments of High Courts.
Every body know the condition of High Courts and no body wants to go there unless and until it is inevitable. This means justice denied. You can assume the condition of over burdened High Courts. NTT would deal only with 01 Act, the Income Tax Act. High Courts have to decide cases under each & every law. Does anybody know, how many Act are prevailing in India? This could be KBC 05 Crore question.
Advocates thought that if no Income Tax case will reach High Court they will loose their income.
And if some one objects on NTT knockdown… CA must respect the verdict? Limitation is necessary? CA would not have quality? Lawyer has to join the School of Hard knocks and CA not? poor ability of understanding?
Mr Nitish Kumarji be fair in your approach. Why were CAs protesting at the govt’s proposal in DTC to allow CSs & CMAs to conduct tax audit when they also thoroughly study accounts & audit? Will u support the proposal to allow advocates who had in their curriculum accounts & audit to conduct audit ?
CAs must respect the verdict of the hon’ble Supreme Court with grace. Govt. always give u what u deserve. SC interfered only when the line was crossed.
Limitation is necessary for all professional. the SC judgment is decided the limit of CA and Lawyer
Probably there are biased reasons for NTT knocked down. Some people felt that a new breed will enter into their profession.
Government felt that CA/CS are competent to appear, because NTT was formed for the purposes of Income Tax. Most of the CAs know Income Tax very well and other commercial taxes also. Advocates were also welcome at NTT. Tax Payer, especially, Business Class, who are directly linked to economy, was being saved from the long haul, expensive and delayed Judgments of High Courts.
Every body know the condition of High Courts and no body wants to go there unless and until it is inevitable. This means justice denied. You can assume the condition of over burdened High Courts. NTT would deal only with 01 Act, the Income Tax Act. High Courts have to decide cases under each & every law. Does anybody know, how many Act are prevailing in India? This could be KBC 05 Crore question.
Advocates thought that if no Income Tax case will reach High Court they will loose their income.
And if some one objects on NTT knockdown… CA must respect the verdict? Limitation is necessary? CA would not have quality? Lawyer has to join the School of Hard knocks and CA not? poor ability of understanding?
Mr Nitish Kumar u r calling the hon’ble Supreme court of India of biased approach and the hon’ble judges as “some people” when entire India holds it in the highest esteem. There is no denying the fact that it is a temple of justice & the Indian democracy survives becaz of institutions like this. It is surprising which quality of CAs ( if u r at all a qualified CA)institute is churning out who do not have scant respect to the greatest institution of the country. Mr Nitish Kumar! u perhaps do not know ur utterances amount to contempt of court & a person like u dreamt of entering a constitutional body like NTT. Thank God , Hon’ble Supreme Court has intervened before it was too late.
Who has a poor quality of judgement i need not say!
I rest my arguments here. In future i need not respond to a person who is so bereft of the basic knowledge.
Thanks a lot for mind provoking discussion………..
Sometimes a judgment is not in one’s favour, this does no mean the Judges are biased. Not at all. Justice is from Judges. As you believe in SC, I also believe therein. Who can question Supreme Authority? No body. Biased may be the approach of petitioners. “Some People” refers to petitioners.
If a section of society has benefitted from the Judgment, its their time to enjoy.
Thanks all for taking the discussion to good heights.
The ruling w r t NTT is one sided in favour of advocates. CAs are not just specialists in accounts and acts.There are many cases where the substantial question of law has been interpreted well by CAs. Our fraternity should see inf steps could be taken to save the space lost by CAs.
Mr Ram one fails 2 understand when CAs have argued on “substantial questions of law” U had no occasion 2 do that becaz it is argued before the high court n supreme court. If any CA has such desire he an acquire a LL.B degree n undergo training under an advocate practising before a high court on taxation side. I know some CAs exactly doing that and r practising in high cour after relinqishing their right 2 pactice as CA
U have no other way 2 ” save d space lost by u”. Becaz d judgement is fm a constitution bench of SC & there is no court above honble SC. Pl also note no further statutory amendment is possible as SC has examined d issue fm d standpoint of constitution of India. So dear frnd accept d verdict gracefully . U have a lot to do as entrusted by the CA Act.So dont lament for something that justifiably didnt belong 2 u.
today you have seen though India boasts it has the best constitution why you needed 100+ constitutional amendments by law makers since 1950.
you see USA is constitution written in 18th century but as on date just 26 constitutional amendments;
you see the UK still accepts and works with unwritten constitution but works with Magna carta common law Privy council did wonderful work for all dominions too; today Law Lords work very well too; we have Wade’s administrative law is still a great piece along with Blackstone commentaries on British constitution, Halsbury Laws of England our courts too still depend on them;
what it shows high patience is needed when one does evaluate a law or a statute as every statute need to be tested on the basic rule of law for india is still the Indian constitution;
how many of us really fully appreciated constitution of india even just taxation part?
so things are not that easy;
learn in the way what subhash agarwalji ‘s comments are; no lobby works in law as law is no politics but just logical presentation like the constituent assembly did!
let us try to get into the ocean of law duly swim in, as courts are conceived by laws under judicial review mechanism; it is not that easy for every one to logically analyze;
Accounts and accounts interpretation in not like pure advanced mathematics but some applied principles, so logic is to be like pure mathematical logic treatment so mathematics only control all sciences even today even appreciating highly advanced nature as a divine phenomenon sciences yet not reached mathematical precision, do the scientists question advanced mathematics but just respects it;
law like Nariman said is a long way to be appreciated even by highly experienced lawyers too so even lawyers are still working on it all over world but advocates of eminence still admit so too judges too ?
when so what lobby one talks about?
today a bombay high court division bench correctly observed that tax tribunal gone out of its ambit of functioning by creating spl brench of 3 menbers k=like full bech of a higncourt ubder so called sec 255 of income tax Act which has no control on the tax tribunal as tribunals are under the administrative tribunals act 1985 which was a product of a constitutional amendment; but interestingly CA qualified members and advocate members of tribunal in a docile way sat on so called 3 member benches created by president poor man is certainly under pressure of revenue and CBDT and finance ministry formed all such non est tribunals what that reflects on the tribunal acceptability by litigant public – indeed a sure ploy played by finance ministry through its hand maiden called CBDT and in that way NTT was formed when the select committee raised several objections but then govt without moving for consideration pf parliament passed the so called NTT Act with some ulterior motive to road roll the tax payer is apparent on record, when so do we like that act to survive, i am sure no man of any iota of common sense would want such an Act, that way the hon SC really did set aside the said Act, as ultra vires; this could not have happened but for erudite Madras bar association strong fighting, so i ask our learned friends would you like government should do what it wants and you would like sheep follow such wedesbury kind of unreasonable approaches which earlier government perpetrated and even the present government follows, would you like to lose your individual rights or your fundamental rights, if so then you may like to become a slave of government but common tax payer would not like dear learned friends that kind of protection if you as an advocate if you provide you can be termed as good advocate if not you fall into the trap of tout to an advocate is it not!
WHAT DO WE MEAN BY CA? CA = CHARTERED ‘ACCOUNTANTS’; CS = COMPANY SECRETARY- ESSENTIAL FUNCTIONS ARE ACCOUNTING AND FINANCE SO THE COURSES CONCENTRATE ON ACCOUNTS AND FINANCE ; IT IS CLEAR THEIR ESSENTIAL FUNCTIONS ARE CONCENTRATING ON ACCOUNTS AND FINANCE;
ADVOCATE = HE IS ONE IS SUPPOSED TO HAVE THE ‘ABILITY TO PRESENT FACTS CLEARLY AND CONCISELY AND EFFECTIVELY WITHOUT TAKING UNDUE ADVANTAGE OF THE LATITUDE GIVEN TO COUNSEL IS A RARE LEGAL QUALITY. IT REQUIRES NOT ONLY ABILITY BUT COURAGE ; NOT ONLY TACT; BUT CHARACTER. IT IS ONE OF THE INFALLIBLE TESTS WHICH DISTINGUISH THE LEGAL BRAVO FROM A JURIST, AND LINCOLN FULFILLED IT IN A MASTERFUL FASHION.’ (QUOTED FROM FREDERICK TREVOR HILL’S , ‘LINCOLN THE LAWYER’ 13 Ame. LAWYER 549)
SIR EDWARD COKE SAID , ‘ REASON IS THE LIFE OF THE LAW; NAY, THE COMMON LAW IS NOTHING ELSE BUT REASON…….. THE LAW ,WHICH IS PERFECTION OF REASON.’;
SIMILARLY, SIR JOHN POWELL SAID, ‘LET US CONSIDER THE REASON OF THE CASE. FOR NOTHING IS LAW THAT IS NOT A REASON.’
VERY POWERFUL REASONING BY DEDUCTIVE LOGIC METHODOLOGY. .. ‘ AN ARGUMENT IT HAS BEEN SAID , IS A REASON OFFERED IN PROOF, TO INDUCE BELIEF OR CONVINCE THE MIND. THE SOLE OBJECT OF ALL ARGUMENT IN COURT IS THE ELUCIDATION OF THE TRUTH, WHICH IS GREATLY AIDED IN MATTERS OF FACT , AS WELL AS IN MATTERS OF LAW BY FULL AND FAIR FORENSIC DISCUSSION. AS APPLIED TO TRIALS BEFORE A COURT OF LAW THE TERM IS COMMONLY USED TO DENOTE THE DISCUSSION BY COUNSEL FOR THE RESPECTIVE PARTIES OF THEIR CONTENTION ON THE LAW AND FACTS THE CASE IN HAND IN ORDER TO AID JUDGE OR THE JURY IN ARRIVING AT A CORRECT AND JUST CONCLUSION’.
THAT ONLY LEAD ONE TO PROPER INTERPRETATION OF STATUTES/LAWS IN RELATION TO THE FACTS RELEVANT UNDER DISCUSSION WITHOUT ANY DIGRESSION WHATSOEVER. IF THAT HAPPENS NATURALLY YOU QUALIFY TO BE AN ADVOCATE WITH SOUND KNOWLEDGE OF LAWS CONCERNED.
THAT WAY HON SC LOOKED IN THE CASE;
FOR EXAMPLE,
LEGITIMATE EXPECTATION – IN A CASE OF ALLOTMENT OF FLATS – PATNA REGIONAL DEVELOPMENT AUTHORITY – IT ALLOTTED RESIDENTIAL PLOTS PREFERENCE GIVEN TO ITS EMPLOYEES IN MATTER OF ALLOTMENT OF PLOTS AND THE APPLICATION OF THE PETITIONER WAS NOT CONSIDERED. IN ‘LALA SACHINDRA KUMAR V PATNA REGNL DEV AUTHORITY ,AIR 1994 PAT 128 – HON COURT OBSERVED THAT THE RULE DID NOT PERMIT ANY SUCH PREFERENTIAL ALLOTMENT IN FAVOR OF THE EMPLOYEE, AS SUCH THE ALLOTMENT WAS FOUND TO BE ARBITRARY. THE COURT HELD THE EMPLOYEE HAS LEGITIMATE EXPECTATION IN THE MATTER OF ALLOTMENT.
WHEN GOVT IS DEALING WITH PUBLIC WHETHER BY WAY OF JOBS OR ENTERING INTO CONTRACTS OR GRANTING OTHER FORM OF LARGESSE, THE GOVT CANNOT ACT ARBITRARILY AT ITS SWEET WILL AND , LIKE A PRIVATE INDIVIDUAL, DEALS WITH ANY PERSON IT PLEASES , BUT ITS ACTION MUST BE IN CONFORMITY WITH SOME STANDARD OR NORMS WHICH IS NOT ARBITRARY , IRRATIONAL OR IRRELEVANT. (KASTURILAL V ST OF J &K AIR1980 SC 1992;
IN KG VERMA V UNION TERRITORY OF CHANDIGARGH ,AIR 1994 P&H 214 – HELD ..’THE DISCRETION EXERCISED BY CH.COMMISSIONER IN THE MATTER OF ALLOTMENT OF HOUSES BY RELAXING THE TERMS UNDER R.26 CANNOT BE TERMED AS ARBITRARY OR UNFAIR.HON CT REASONED THAT THE CONFERMENT OF SUCH POWER INDICATED THAT THERE WERE CIRCUMSTANCES OF RELAXATION’.
WHEN A PERSON BASED HIS CLAIM ON THE DOCTRINE OF LEGITIMATE EXPECTATION IT IS REQD TO BE SATISFIED THAT TERE IS A FOUNDATION AND THAT IS ‘LOCUS STANDI’ TO MAKE SUCH A CLAIM AND WHEN CT IS SATISFIED THAT A CASE OF OF LEGITIMATE EXPECTATION IS MADE OUT, THE RELIEF CAN BE GRATED;
BUT HERE THE COURT STRUCK DOWN VERY NTT ACT AND CT DID NOT AGREE WITH GOVT IN PERMITTING CAs/CSs SKILL OF INTERPRETATION OF STATUTES THAT WAY CT DECIDED, HOW CAN WE FEEL BAD!