Sub: Petition made by Rajasthan Tax Bar Association, Jaipur under Article 141 of the Constitution of India read with Section 29 and 33 of the Advocates Act with Chief Commissioner of Income-tax, Jaipur (Rajasthan)
This has reference to the e mail dated 8th March, 2013 received from Shri Vilayatrani Bhuvnesh addressed to the President & Vice President, ICAI alongwith which he had sent a copy of the captioned petition made by Rajasthan Tax Bar Association. It appears from the said petition that it is a Representation made by Rajasthan Tax Bar Association to the Chief Commissioner of Income Tax, Rajasthan with a request not to permit any person other than an advocate "to practice the profession of law" before the authorities of Income Tax Department (i.e. before the Assessing Authorities as well as Appellate Authorities) for arguments during the course of assessment, penalty and appellate proceedings.
In this connection, we would like to mention that earlier in the year 2006, Rajasthan Tax Bar Association filed a writ petition (No.2928/2006) before the Rajasthan High Court at Jaipur Bench, challenging, inter alia, the virus of Rule of 61 of Rajasthan Value Added Rules, 2006, whereby the "authorized representatives" (including chartered accountants) are allowed to appear before the tax authority in connection with any proceedings under the Rajasthan Value Added Tax Act, 2003 or Rules on the ground that the said rule is violative of Section 33 of the Advocates Act, 1961 which provides that the Advocates are the only class of persons entitled to practise the profession of law except as otherwise provided in the Advocates Act, 1961 or any other law for the time being in force. The said petition was dismissed by the Hon'ble Division Bench of the Rajasthan High Court vide its order dated 2nd February, 2009.
Subsequent to that, the Jaipur Tax Bar Association filed another writ petition (No.6676 of 2010) in Rajasthan High Court praying, inter alia, that CBDT, Income Tax Appellate Tribunal and Chief Commissioner of Income Tax, Rajasthan and Commissioner, Commercial Taxes, Rajasthan be restrained from allowing the Chartered Accountants to plead cases before them and hold that only the advocates who are enrolled with the State Bar Council would be entitled to plead and argue the matter before the above Respondents. It was also prayed that the Bar Council of India as well Bar Council of Rajasthan be directed to take action against the persons under Section 45 of Advocates Act, 1961 who are not enrolled with the Bar Council and practising law before the various tax authorities. The above petition is pending in the Court for hearing.
In this connection, it may also be mentioned that the Bar Council of India (BCI) also filed a writ petition (No.2360/2005) in Delhi High Court (wherein our Institute has been impleaded as one of the Respondents), challenging the virus of Section 288 of the Income Tax Act, 1961 and Section 82 of the Delhi VAT Act whereby 'authorized representation' (including chartered accountants) are allowed to appear before any authority in connection with any proceedings under the Income Tax Act and the VAT Act on the ground that the above provisions are violative of Section 29 of the Advocates Act, 1961 which provides that advocate is the only class of persons entitled to practise the profession of law and the provisions of the Special Statute i.e. the Advocates Act, 1961 shall prevail over the provisions of the Income Tax Act and VAT Act. During one of the hearings in the above matter, the Counsel for the petitioner stated that the matter about meaning of word `practice' (Sandeep Goyal Vs. Union of India) is pending in the Supreme Court and is not concluded. In view of the order dated 9.1.2007 (copy enclosed) passed by Supreme Court in the case of Sandeep Goyal, the Hon'ble High Court admitted the captioned petition and as such the case will come up for hearing after the decision in the case of Sandeep Goyal is taken by the Supreme Court. The background of the case of Sandeep Goyal in brief is as under:
The Supreme Court of India seized of the matter from various High Courts whereby the constitutional validity of various provisions of the National Tax Tribunal Act, 2005 (NTT Act) has been challenged including Section 13 of the said Act, inter alia, permits 'any person duly authorized' before the National Tax Tribunal. In the Affidavit filed on behalf of Union of India in the said matter, it has been stated, inter alia, that the Govt. would make appropriate amendments in Act to ensure that only lawyers and chartered accountants and party in person are permitted to appear before the Tribunal. The leading case in the captioned matters is the Sandeep Goyal Vs. Union of India wherein the Hon'ble Court passed the interim order on 9th January, 2007. The said matter is yet to be decided by Hon'ble Supreme Court.
As far as the instant matter is concerned, it is not a petition filed before any Court of Law but only a representation made before the Chief Commissioner of Income-tax, Jaipur. In case the Institute's views/comments are sought by Chief Commissioner of Income Tax, appropriate submissions will be made to Chief Commissioner of Income Tax, Rajasthan. This is as per advice of our Advocate at Jaipur.
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