\n

29-CA\/Law\/NDM-1134                                                                 27^{th<\/sup> November, 2015<\/p>\n}

 To,<\/p>\n<\/p>\n

 The Principal Chief Commissioner<\/p>\n<\/p>\n

 Income Tax,<\/p>\n

Chandigarh<\/p>\n

 Sub:<\/strong>   Only enrolled Advocates are licensed to practice Law in
\nIndia- Not to allow Chartered Accountants\/ Non- Advocates for practice of law
\nin the course of proceedings before revenue authorities falling under the
\njurisdiction of Principal Commissioner of Income Tax and Commission of Income
\nTax, Amritsar, Jammu etc.<\/strong><\/h3>\n

 <\/p>\n

Dear Sir,<\/p>\n

 Recently,
\nit has come to our knowledge that a proposal not allowing Chartered
\nAccountants\/ Non- Advocates for practice of law in the course of proceedings
\nbefore revenue authorities falling in your jurisdiction is under consideration.<\/p>\n

\n

 In this
\nregard, although, comments have not been called for from the Institute of Chartered
\nAccountants of India New Delhi, yet being the statutory body and regulator as
\nwell, we wish to bring the following facts for your consideration.<\/p>\n

\n

 The
\nInstitute of Chartered Accountants of India, is a statutory body established by
\nan Act of Parliament namely \u2018The Chartered Accountants Act, 1949\u2019 for
\nregulating the profession of Chartered Accountants. We further, wish to inform
\nyou that a significant majority of our membership is in the practice with a
\ngood deal of specialisation in the traditional areas of direct\/ indirect taxes
\nand in emergent specialism inter alia<\/em>, in financial services,
\ninformation technology, insurance sector, joint ventures, mutual funds,
\nexchange risk management, risk and assurance services, environment \/
\nenergy\/quality audits, investment counselling, corporate structuring and
\nforeign collaborations etc.<\/p>\n

 The
\nInstitute of Chartered Accountants of India is also engaged in the Nation
\nbuilding by contributing to Central and various State Governments and other
\nregulators viz, the Ministry of Corporate Affairs, Trade Policy division of the
\nMinistry of Commerce and Industry, Central Board of Direct Taxes, Reserve Bank
\nof India, Insurance Regulatory and Development Authority, Comptroller and
\nAuditor General of India, Securities Exchange Board of India etc. to name a
\nfew, on the
\nrelevant matter of importance to the profession and having bearing to the
\npublic interest. <\/p>\n<\/div>\n

\n

 <\/p>\n

The education and training programme of the Institute to
\nthe qualification of Chartered Accountancy is adequately designed to ensure
\nthat our members have in depth knowledge\/ experience of accounting, taxation,
\nfinancing and audit etc. The Institute spares no efforts in keeping pace with
\nthe current accounting and auditing practices prevalent throughout the world.
\nAn individual who qualifies as a Chartered Accountant has to mandatorily
\nundergo rigorous practical training and has to keep his knowledge updated in
\nthe matter relating to accountancy, audit, taxation and corporate laws etc. The
\narea of training covers accountancy, auditing, taxation, company law and other
\nlaws. The level of knowledge prescribed in the various subjects covered by the
\nsyllabus of the Chartered Accountancy course is \u2018expert knowledge\u2019.<\/p>\n

 <\/p>\n

That
\nTaxation including Indirect Taxes is one of the core-competence areas of
\nChartered Accountants. In India, Chartered Accountants have expertise in
\naccounting, auditing and taxation, since these subjects are dealt with in great
\ndepth in the CA curriculum. Further, Taxation constitutes a significant area of
\npractice of CAs. It is due to this reason the Institute has three separate
\ndedicated committees on taxation, namely, Direct Taxes Committee, Indirect
\nTaxes Committee and Committee on International Taxation. These committees are
\namongst the most important committees of the Institute and they act as a
\nliaison between the Revenue and the tax payers. The Committees comprise of
\nchartered accountant members of the Central Council, as well as other co-opted
\nmembers, who are experts in the field of Taxation from across the country.
\nTherefore, it is clear that a chartered accountant, on passing his final
\nexamination and completing his articled training, is an expert in taxation,
\naccountancy, auditing, company law and other laws etc., and he is accordingly fully
\nqualified to practice in these fields. Chartered Accountants are thus well
\ntrained in various laws which are applied while conducting cases before various
\ntribunals and other similar authorities.<\/p>\n

 <\/p>\n

The provisions of Income tax Act involve computation and
\nanalysis of profit and loss account which directly relates to accounting
\nprocedure or the recording, presentation or certification of financial facts or
\ndata. Chartered Accountants being an expert in understanding and analyzing the
\nfinancial statements are thus the right person for explaining the related facts
\nin case of dispute.<\/p>\n

 <\/p>\n

For application of tax legislations, the prima facie
\ndocuments are financial statements thus the government has given the task
\nrelating to financial statements appropriately to Chartered Accountants.<\/p>\n

 <\/p>\n

The matters before the Tax Authorities involve issues and
\nquestions mainly relating to accountancy and require knowledge and expertise in
\naccounting matters. This is why many of the leading and most successful tax
\nadvocates are also qualified Chartered Accountants. The appearance of Chartered
\nAccountants before tax authorities and tribunals has always been considered to
\nbe an integral part of the practice of a Chartered Accountancy ever since
\n1940s, when the Income Tax Appellate Tribunal was first set
\nup and when Chartered Accountants began appearing before it.<\/p>\n<\/div>\n

\n

\n

 <\/p>\n

It is necessary to note that the
\nmembers of the Institute are thus well trained in the fields of various laws
\nwhich are applied while conducting the cases before the various tax\/revenue
\nauthorities. It is in recognition of that crucial fact the various applicable
\nstatutes specifically permit Chartered Accountants to appear before authorities
\nand Tribunals constituted under those statutes. A few of such statutes are
\nlisted below:-<\/p>\n

 <\/p>\n

(a)         
\n<\/em>Section
\n288 of the Income Tax Act, 1961 read with Rule 50 of the Income Tax Rules, 1962
\n<\/em><\/p>\n

 <\/em><\/p>\n

(b)         
\n<\/em>Section
\n35-Q of the Central Excise Act, 1944 <\/em><\/p>\n

 <\/em><\/p>\n

(c)         
\n<\/em>Section
\n146-A of the Customs Act, 1962 read with Rule 9(a) of the Customs (Appeals)
\nRules, 1982 <\/em><\/p>\n

 <\/em><\/p>\n

(d)         
\n<\/em>Section
\n15-V of the Securities and Exchange Board of India Act, 1992 <\/em><\/p>\n

 <\/em><\/p>\n

(e)         
\n<\/em>Section
\n22(C) of the Securities Contracts (Regulation) Act, 1956 <\/em><\/p>\n

 <\/em><\/p>\n

(f)          
\n<\/em>Section
\n17 of the Telecom Regulatory Authority of India Act, 1991 <\/em><\/p>\n

 <\/em><\/p>\n

(g)         
\n<\/em>Section
\n432 of the Companies Act, 2013 <\/em><\/p>\n

 <\/em><\/p>\n

(h)         
\n<\/em>Regulation
\n19 of the Company Law Board Regulations, 1991 <\/em><\/p>\n

 <\/em><\/p>\n

(i)           
\n<\/em>Section
\n35 and Section 53 S of the Competition (Amendment) Act, 2007 <\/em><\/p>\n

 <\/em><\/p>\n

(j)          
\n<\/em>Rule 61
\nof the Special Economic Zone Rules, 2006 <\/em><\/p>\n

 <\/em><\/p>\n

(k)         
\n<\/em>Before
\nthe Central Electricity Regulatory Commission vide Notification
\nNo.8\/(1)\/99\/CERC dated 27.8.1999 <\/em><\/p>\n

 <\/em><\/p>\n

(l)          
\n<\/em>Airport
\nEconomic Regulatory Authority of India Act; in terms of section 30, CA can
\nappear before Appelate Tribunal <\/em><\/p>\n

 <\/em><\/p>\n

(m)        
\n<\/em>The
\nForeign Exchange Management Act, 1999 \u2014 in terms of Sections 16 and 32<\/em> <\/p>\n<\/div>\n

\n

 <\/p>\n

Needless
\nto mention that the Institute, since its inception in the year of 1949, has
\nalways remained at the forefront in serving the nation by establishing sound
\nfinancial prudence within the country.<\/p>\n

 <\/p>\n

Further,
\nthe Institute has a stringent code of conduct\/Ethics which are required to be
\nfollowed by its members. It is also pertinent to mention that the Chartered
\nAccountants Act, 1949 provides the disciplinary mechanism for making investigation
\nand taking disciplinary action in respect of any complaint\/information of
\nprofessional\/other misconduct in respect of a member and\/or levy of penalty of
\npermanent removal of name from the register of members and\/or levy of penalty
\nup to Rupees Five Lakhs as well depending on the gravity of offence(s).
\nTherefore, the Chartered Accountants are governed by the Chartered Accountants
\nAct, 1949 and the Chartered Accountants Regulations 1988 framed there under and
\nare subject to strict provisions of professional ethics and professional
\nconduct and any deviation there from would make them liable for disciplinary
\naction under the said Act. The ICAI has established a Peer Review Board to
\nensure compliance with technical standards, acceptance and adherence to quality
\ncontrol policies and procedures by Chartered Accountants firm in the services
\nbeing rendered by them. Such reviews certainly boost the confidence of society
\nat large in the quality of work of Chartered Accountants in India.<\/p>\n

 <\/p>\n

The term
\n\u2018practice of profession of law\u2019 has not been defined under the Advocates Act,
\n1961. The appearance before the Authorities established under the Income-Tax
\nAct does not amount to \u2018practice of profession of law\u2019. The Hon\u2019ble Supreme
\nCourt in the case of C. Venkatachalam vs. Ajitkumar C. Shah & Ors. [6<\/strong>
\n(2011) 9 SCC 707]<\/strong>, while considering the provisions of the Consumer
\nProtection <\/strong>Act, 1986, upheld the judgment of the Division Bench of the
\nBombay High Court, whereby the Hon\u2019ble High Court held that a party before the
\nDistrict Consumer Forum\/State Commission cannot be compelled to engage the
\nservice of an advocate. The Hon\u2019ble Supreme Court also observed that the High
\nCourt was fully justified in observing that the authorized agents do not
\npractice law when they are permitted to appear before the District Forum and
\nthe State Commission. Further, the Hon\u2019ble Supreme Court also approved the view
\ntaken by the High Court that many statutes, such as, Value Added Tax, Income
\nTax and Competition Act also permit non-advocates to represent the parties
\nbefore the authorities and those non-advocates cannot be said to be practicing
\nlaw.<\/p>\n

 <\/p>\n

A perusal
\nof Section 33 of the Advocates Act, 1961 shows that it specifically
\ncontemplates and provides that the other statute in question may specifically
\npermit persons other than Advocates to appear before Courts and Tribunals
\nfunctioning under that statute. Such provisions are to be found in all Central
\nas well as State Acts dealing with various direct and indirect taxes such as
\nIncome Tax, Excise Duty, Value Added tax, etc. The Hon\u2019ble Supreme Court in R.D.
\nNagpal<\/strong> v. Vijay Dutt [(2011) 12 SCC 498] <\/strong>considered the provisions
\nof the Consumer <\/strong>Protection Act, 1986. Rule 14(3) of the Consumer
\nProtection Rules, 1987 allowed the parties or their agents to appear before the
\nNational Commission, and the expression \u2018agent\u2019 as defined in Section 2(b) of
\nthe said Act means a person duly authorised by a party to present any
\ncomplaint, appeal or reply on its behalf before the National Commission. The Supreme
\nCourt held that given the wide definition of the expression \u2018agent\u2019, there was
\nno reason, if the Commission were otherwise satisfied that a person was
\nauthorised on behalf of the appellant, to refuse to allow him to represent it
\nand to cross examine the complainant. The provisions of Section 33 of the
\nAdvocates Act of 1961 came up for consideration and it was held as follows:-<\/p>\n<\/div>\n

\n

 <\/p>\n

6.          
\n<\/em>The
\nlearned counsel appearing on behalf of the respondents has relied upon Section
\n33 of the Advocates Act, 1961. Section 33 makes it clear that advocates alone
\nwill be entitled to practice before any court or before any authority, etc.
\n\u201cexcept as otherwise provided in this Act or in any other law for the time
\nbeing in force\u201d. The Consumer Protection Act read with the Rules would be \u201ca
\nlaw for the time being in force\u201d. <\/em><\/p>\n

 <\/p>\n

Recently, the Lucknow Bench of the Hon’ble High Court of
\nJudicature at Allahabad, in case No. 7116 of 2014, Tax Lawyers Association,
\nLucknow Throu General Secry. & Anr. vs. State of U.P. Thru Prin. Secy. Tax
\n& Registration, has passed an Order dated 06.08.2014 directing, inter alia,
\nthat any person, who is not a registered Advocate, shall not be permitted to
\nappear before the Authority under the U.P. VAT Act. Further, the Hon\u2019ble Bench
\nof the Chief Justice of Lucknow Bench of the Allahabad High Court, after
\nhearing the arguments in detail on 20th August, 2014, modified the above Order
\ndated 6th August, 2014 vacating the stay and consequently, Chartered
\nAccountants continue to be permitted to appear before the authorities under the
\nVAT Act in the State of U.P. The Division Bench of the Hon\u2019ble Chief Justice\u2019s
\nCourt, in its Order dated 20.08.2014, observed that Section 29 of the Advocates
\nAct, 1961 speaks of there being only one class of persons entitled to practice
\nthe profession of law, namely, advocates. Section 33 of the said Act
\ncontemplates that only a person who is enrolled as an advocate under the Act
\nwill be entitled to practice in any court or before any authority or person. The
\nentitlement to practice under Section 33 of the Advocates Act, 1961 is
\nobviously an entitlement to practice the profession of law but what is more
\nimportant is that Section 33 recognises that any other provision of law and for
\nthat matter, the Act itself may authorize a person who is not enrolled as an
\nadvocate under it to practice in any court or before any authority or person.
\nConsequently, there is no question of the ultra vires doctrine being attracted
\nfor the simple reason that Section 33 of the Act of 1961 contemplates that any
\nother law may authorize a person who is not enrolled as an advocate under the
\nAct to practice before any court, authority or person.<\/p>\n

 <\/p>\n

It is stated that the above matter is pending before the
\nLucknow Bench of the Hon’ble High Court of Judicature at Allahabad for final
\nhearing.<\/p>\n

 <\/p>\n

The Statute only confers on lawyers the exclusive right to
\npractice law. With the passage of time there are a lot of functions which are
\noverlapping with the practice of law and such overlapping functions cannot
\nconfer the right on lawyers under the Advocates Act. Any such interpretation
\nwill stultify the growth and evolution of society and the rules of effective
\nand expeditious dispute resolution. It is, therefore, of vital importance to
\nnote that Section 33 of the Advocates Act, 1961 itself specifically
\ncontemplates and provides that the other statute in question may specifically
\npermit persons other than Advocates to appear before Courts and Tribunals
\nfunctioning under that statute. Such provisions are to be found in all Central
\nas well as State Acts dealing with various direct and indirect taxes such as
\nIncome tax, Excise duty, value added tax etc. Thus, the Income Tax Appellate
\nTribunal is constituted under the provisions of The Income Tax Act, 1961.
\nSection 288 of the Income Tax Act, 1961 provides for appearance by \u2018authorised
\nrepresentatives\u2019 before any Income-tax Authority or the Income-tax Appellate
\nTribunal.<\/p>\n<\/div>\n

\n

\n

 <\/p>\n

Moreover,
\nthe matters before the various tax\/revenue authorities involving mainly issues
\nand questions relating to Accountancy and require knowledge and expertise in
\naccounting matters. Indeed, even if an advocate appears in such matters, he
\ncannot present his case in the most effective manner without a good knowledge
\nof accountancy. This is why many of the leading and most successful tax
\nadvocates are also qualified Chartered Accountants. The appearance of Chartered
\nAccountants before tax authorities and tribunals has always been considered to
\nbe an integral part of the practice of a Chartered Accountancy ever since
\n1940s. As stated above, the Institute spares no efforts in keeping pace with
\nthe accounting practices prevalent and those evolving throughout the World. A
\nperson who qualifies as a Chartered Accountant is to undergo rigorous practical
\ntraining spanning three years and has to keep his knowledge updated in the
\nmatters relating to accountancy and the applicable laws. In any event, it is
\nentirely for the framers of the various enactments viz. Income Tax Act, 1961,
\nthe Companies Act, 2013 etc. to lay down who should be eligible to appear
\nbefore the Tribunals and authorities constituted under each of these respective
\nenactments. The Income Tax Act and the provisions contained therein as to who
\ncan appear in proceedings under those enactments are special provisions of law
\nwhich would necessarily prevail over the general provisions contained in the
\nAdvocates Act.<\/p>\n

 <\/p>\n

Each legislation enacted by
\nParliament or by a State Legislature is an independent code by itself.
\nParliament and the State Legislature duly take into consideration the various
\nissues involved and incorporate the requirements into the respective
\nlegislations. Therefore, to re-write such provisions so as to provide that the
\nappearance by other professionals is for a limited purpose only is totally
\nunwarranted.<\/p>\n

 <\/p>\n

That law
\nis a dynamic subject and the growth of trade and commerce and the requirements
\nof revenues of Governments have resulted in the emergence of specialized
\nlegislations like the Income-tax Act, the Central Excise Act, 1944 and the
\nCustoms Act, 1956 and other various State-Level VAT Legislations. The
\nConstitution of India itself has recognized the importance of the specialized
\nfields of such legislations and has expressly provided for the creation of
\nspecialized tribunals which take care of such specialized fields of law.
\nParliament in its wisdom, while enacting aforesaid legislations have considered
\nall the relevant issues before incorporating the provisions relating to
\nauthorized representatives These legislations specifically allowed
\nprofessionals other than advocates to be authorized representatives. This
\nclearly amplifies the point that the legislature is fully conscious of the
\nrequirements of the particular specialized legislation. The purpose of
\nestablishing various Tribunals is to decide issue on a particular subject by experts
\nin that field and in that direction, specialized Tribunals have been created by
\nthe various statutes. If the Chartered Accountants, who for reasons of rigorous
\npractical training and examinations, have acquired expertise in accounting and
\ntaxation laws, were not to be allowed to appear before such specialized
\nauthorities\/Tribunals, the very purpose of establishment of such Tribunals
\nwould get defeated. Besides, such restrictions will limit the choice afforded
\nto the affected persons by the statutes to choose their representative. <\/p>\n<\/div>\n

\n

 <\/p>\n

In the
\nmatter of Rajkot Engineering Association and Ors. And Tax<\/em><\/strong> Advocates
\nAssociation and Ors.v. Union of India MANU\/GJ\/0019\/1986 <\/em><\/strong>the <\/em><\/strong>Gujarat
\nHigh Court held as follows:<\/p>\n

 <\/p>\n

\u201cThere is no restriction on the right of the assessees to
\nselect as their own authorised representatives whomever they like whether the
\nsame chartered accountants who have carried out the tax audit or other
\nchartered accountants or other Income Tax practitioners\u2026.<\/em><\/p>\n

 <\/p>\n

In
\nthe present state of Income Tax law, the interpretation and development of
\nwhich has become very intricate and complex, it is not difficult to anticipate
\nthat a situation has arisen where more and more assessees would like to be
\nassisted both by the chartered accountants as well Income Tax consultants and
\npractitioners who may be non-chartered accountants in arranging their financial
\naffairs and in the maintenance of their accounts, records and documents for
\npreparation of the returns and in the course of assessment before tax
\nauthorities.\u201d<\/em><\/p>\n

 <\/p>\n

In the
\nabove backdrop we are of the view that it would not be appropriate to consider
\nany such proposal which restrains the Chartered Accountants from appearing
\nbefore the revenue authorities in India particularly when various Central\/State
\nlegislations including the Income Tax Act, 1961 expressly provide and authorise
\nthe Chartered Accountants to appear and represent the cases before the
\nauthorities under the Income Tax Act, 1961. Further, we may request you to
\nconsider our submissions as above and afford us an opportunity to present our
\ncase in person before taking any final decision in this regard. In case your
\ngood office needs any further clarifications, we may please be advised.<\/p>\n

 <\/p>\n

Thanking
\nyou,<\/p>\n

 Yours
\nfaithfully,<\/p>\n

\n

 (V.
\nSagar)<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"

29-CA\/Law\/NDM-1134                                                                 27th November, 2015  The Principal Chief Commissioner   Dear Sir,  The Institute of Chartered Accountants of India is also engaged in the Nation building by contributing to Central and various State Governments and other regulators viz, the Ministry of Corporate Affairs, Trade Policy division of the Ministry of Commerce and Industry, Central Board of … Read more<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_uag_custom_page_level_css":"","_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[11],"tags":[178],"class_list":["post-1699","post","type-post","status-publish","format-standard","hentry","category-miscellaneous","tag-ca"],"yoast_head":"\n