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Advocates alone are entitled to Practice, Plead and Act before the revenue authorities

BSKRAO 
on 19 November 2014

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(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,

Auditor & Tax Advocate,

BDKRAO, Beside SBI,

Tilak Nagar, Shimoga-577201

Karnataka State

E-Mail: raoshimoga@gmail.com


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