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| DATE: | August 9, 2014 (Date of publication) |
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| Click here to download the judgement (VAT_non_Lawyers_retraint.pdf) |
Interim order passed that non-advocates cannot appear before VAT authorities or advertise services relating to filing of returns/ arguing before VAT authorities
The Tax Lawyers Association filed a Writ Petition claiming that Rule 73 read with Rule 79(2)(f) of the U.P. Value Added Tax Rules 2008 which permits outsiders to practice in the field of Law before the VAT Authorities under the VAT Act is ultra vires section 33 of the Advocates Act 1961 which provides that only Advocates are entitled to practice before any Court or authority. It was claimed that under the garb of the impugned Rule, outsiders have been permitted to appear before the authorities under the VAT Act to practice in the field of Law. Attention was drawn to certain leaflets which seem to be advertisement by certain persons who are not registered Advocates inviting assesses with regard to filing of return on payment of Rs.400 and odd. It was submitted that under the garb of said Rule, persons who are not skilled lawyer or have no knowledge in the field of Law, are appearing before the authority under the VAT Act, are spoiling the academic atmosphere of the profession. HELD by the Court admitting the Petition:
As an interim measure, we direct the respondents that no person whosoever, may be permitted to advertise in the Newspaper or any leaflet, inviting assesses for the purpose of filing of return or arguing before the authority under the VAT Act. Any person, who is not a registered advocate, shall not be permitted to appear before the Authority under the VAT Act.
Section 33 of THE ADVOCATES ACT, 1961 reads as under
33. Advocates alone entitle to practice.
Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on of after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.
If any other law permit to present any person other than advocate section 33 not bar such appearance.
On what basis the provisions of VAT Laws said to be contrary to Advocates Act, 1961, I could not understand.
Whether it was because the permission to appearance of the person other than Advocates is through the rules and not by VAT Act. Otherwise in my opinion if any law permit for appearance of any person other than Advocate it is not contrary to the provisions of Advocates Act, 1961.
CA Goutam Baid
Jodhpur
I agreed with you Sir, and it would be unconstitutional to bar authorized representatives. And it is clearly laid down in Vat Act “Unless otherwise provided in the Act or these Rules, anything which is by the Act or the rules required or permitted to be done by a dealer, except when he is required to attend personally for examination or affirmation on oath, may be done by a lawyer, an accountant or an authorized agent appointed by the dealer in writing in this behalf “
my opinion if any law permit for appearance of any person other than Advocate it is not contrary to the provisions of Advocates Act, 1961.
Filing a return by a non professional is not representation before any Vat Authority. Issue of orders to prohibit such activities by Non advocates should be stayed at once . Any anomaly in law should also be set right by the Central Government immediately.
Please read the words carefully. It states: “provided in this Act or in any other law for the time being in force”. For the time being in force means at the time when the Advocates Act was passed. That means it should have come in force before the Advocates Act was promulgated or legislated. It there is a pre-existing provision to allow others it is okay. In any legislation subsequent to the Advocates Act, such a provision allowing others cannot be made. Therefore the provisions of VAT Act are ultra vires the Advocates Act.
Is there any purpose to permit other professional for the statute passed before the advocates act and not permitting for statute enacted subsequent to the advocates act.
The Advocates Act was passed by the parliament and by that specific provisions made like section 33.
When parliament has authority to made such provision why the same parliament or state assembly has no power to made such provisions for other category of professionals for specific purpose.
In my opinion words “for the time being in force” not restricted to the statute passed before Tha Advocates Act.
CA GOUTAM BAID
Jodhpur
How can a CA or CS help determine the question of law involved in a taxation dispute,” the bench asked.
“Many clerks and stenographers after long association with lawyers know the provisions of law quite well. Can they be said to have knowledge enough to decide questions of law. A CA or a CS would be studying taxation law from the angle of tax purposes only and not for understanding the questions of law that would arise in a dispute.”
The comments referred by you are not of this decision and as per media reports it was oral comments (in lighter way) of the supreme court with reference to constitution of NTT (National Tax Tribunal).
The Advocates Act is only one of the Act passed by the parliament and “subject to other laws” and not “irrespective of other laws”.
Appearance in statutory proceedings cannot be equated with the position of decisive authority.
If comments of supreme court (I am not sure about exact wording as different news papers reported differently) considered as a general comment irrespective of matter before the court then by same logic officers deciding tax issues are also contrary to the Advocates Act.
Lawyer’s Association was against some handbills distributed by some unauthorised persons. Court has erred in passing such type of decision restricting everbody other than advocate. Advocates are now overjoyous. Having LLB degree does not mean a common man could not understand questions of law. Every common man is deemed to have knowledge of every law. A Gazette paases in Lucknow or Delhi and it is deemed to served on every common man. Each and every person could defend his case. If SC judge has this type of attitude like stenos also have knowledge of law but they cant understand question of law, no body could expect justice.
every proffesional has hisproffessional limits.c a is master in accounts. dr is master of medicines. advocate is masterof laws and pleadinds. so why interfere in each other fields.wheather a tax advocate should beallowed to do audit work if not thenwhy the other non advocates unathorised personsare interestedto interfere in his right to practice/pleade .a simple question
every proffesional has hisproffessional limits.c a is master in accounts. dr is master of medicines. advocate is masterof laws and pleadings. so why interfere in each other fields.wheather a tax advocate should beallowed to do audit work if not thenwhy the other non advocates unathorised personsare interestedto interfere in his right to practice/pleade .a simple question
In the matter of law in general advocates / legal consultants are expert. But in the the matter of tax laws whether direct or indirect taxes CA is expert. The education of a CA equip him to practice tax laws. Both advocates and CA’s are creation of law. Income tax act allows advocate / CA to appear before the tax authorities upto ITAT. Income tax act doesn’t allow CA but to advocates to appear before high court and above. We CA’s are not doing practice in high court. We are practising in only those laws specifically in which we are trained and allowed by act of parliament or state legislature to practice. In the matter of tax practice some of the area of practice of advocates and CA’s overlaps but otherwise both are expert in different streams.
Why everybody is bothered let the client decide from whom he wants to get the service in the case the area of practice overlaps.
Interim order dated 6 August 2014 stand vacated insofar as the categories of (i) Chartered Accountants; (ii) Cost and Works Accountants; and (iii) Company Secretaries are concerned. The PDF link to the order containing the vacation dated 20.08.2014 is below
https://db.tt/0q2FuK4E
the vacation order passed by Chief Justice of Allahabad high court is detailed one and has touched each and every aspect of the dispute in a very logical manner.
Problem is the law makers who make laws permitting all and sundry with giving cognizance to sec 33 of advocates Act, so the such relevant sections in so called Acts need to be removed under doctrine of doctrine of severability which can be more easier and faster to high courts all over india,
problem is every such act is indeed a conflict of laws base that need to be sorted out by due court action,
True if the very person appears he can like a petitioner in person not by any other agent other than an advocate.