No absolute right of an Advocate to have appearance in any Court – Gujarat HCApurva N. Mehta, Advocate The High Court of Gujarat in a Writ Petition in the form of Public Interest Litigation between Vasava Narpat Sinh, Advocate v/s Registrar, Gujarat High Court & Ors has held that an Advocate has no absolute right to have appearance in any Court in India even after enforcement of Section 30 (Right of advocates to practice) of the Advocates Act, 1961 with effect from 2011. The argument advanced by the petitioner – in – person that the High Court of Gujarat by enacting Rule 428 (Mode of appearance by advocate not on the Roll of Advocates maintained by the Bar Council of Gujarat) cannot put any restriction on his right to practice in any High Court once his name was in the roll of the Bar Council, Madhya Pradesh was turned down by the Hon'ble Court relying on two Supreme Court judgments viz. Bar Council of India v/s High court of Kerala [AIR 2004 SC 2227] & Ex-Capt. Harish Uppal v/s Union of India and Another [AIR 2003 SC 739] and holding as under : " 11. It appears that in the last two sentences of the above quoted paragraph, the Supreme Court specifically held that even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court and thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts. The Supreme Court further held that right to practice is subject to the rule-making power of the High Court under Section 34 of the Advocates Act, and thus, the right to appear in any Court is not an absolute right in that sense. 12. In our view, Mr. Trivedi is perfectly justified in his contention that the provision for Advocate Code is beneficial for the smooth administration of justice and for maintaining natural justice in the course of judicial proceedings. Otherwise, if without getting a code, an advocate of a different State is permitted to appear and after filing proceedings if he gets an interim order and his whereabouts is not traceable, the person against whom such ad-interim order of injunction is granted will face immense difficulties in vacating the ad-interim order of injunction after service of notice upon the petitioner. As provided in Section 122 of the Code of Civil Procedure, the High Court is vested with the power to frame rules not only for the proper administration of justice in the High Court but also in District Courts and the right of appearance of an Advocate to practice anywhere in India as provided in section 30 of the Advocates Act is subject to fulfillment of such condition as provided in various High Court Rules. 13. We, therefore, find that notwithstanding enforcement of section 30 of the Advocates Act with effect from 2011, an Advocate has no absolute right to have appearance in any court and such right must be subject to compliance of other laws laid down by the High Court in exercise of power under section 34 of the Advocates Act and Section 122 of the Code of Civil Procedure. " Source- Vasava Narpat Sin H(Advocate) & Anr Vs. Registrar Gujarat High Court & Ors. (High Court Of Gujarat At Ahmedabad)Writ Petition (PIL) No. 315 Of 2013, Date : 11/08/2014 Tax Audit Report – New Formats Should Be Deferred, Extension Is Not A SolutionCA Sudhir Halakhandi  The date of obtaining and furnishing of tax audit report u/s 44AB has been extended from 30th Sept. 2014 to 30th Nov. 2014 and while issuing the orders under section 119 the Central Board of Direct Taxes has created one more confusion which is related to the extension of date of ITR. Though this is not the subject matter of this write up, but we are waiting for a fresh order in this respect since the date of obtaining and submission of audit report is governed by the date of filing of ITR which is given in section 139(1) hence now they have to issue a fresh order to extend the date of filing of ITR which will automatically extend the date of furnishing of audit report. There is a concern from the legal and taxation sector in this respect but one point is clear that one cannot file his ITR without completion of audit hence this is a technical error which they have to rectify in ASAP and there is no other way left in this respect but this a big question mark on the "quality". They have introduced the schema of the New audit report on the Income tax site today i.e. 21st. Aug.2014 and please remember that there were 10 changes in the schema in 2013 but the CBDT was not ready to extend the date even by a single day and now there is an extension of 2 Months at once, so there is a change in "Attitude" also which may be result of pressure of Representations submitted by CAs, Trade and Industries in large numbers.Let us come to the point , this extension is not the solution of the problems which were enumerated by us in our representations submitted to the CBDT and we have specifically emphasized the problem of the assesses whose audits were completed before 25th July 2014 but not "uploaded" on the site of the Income tax department . This is general practice and sometimes a compulsion also and numbers of these audits are very large, may be in lakhs, including the Banks, insurance companies and other entities. The problem is created by "midyear" introduction of fresh formats which was not only sudden but untimely and against the promised declared policy of lawmakers "Simplification and rationalization of Taxation laws". The ICAI, regulatory body of chartered accountants in India , established under the Act of parliament , has also shown a concern towards these audits mentioned above and since the number is very large, the problem should be understood by the lawmakers and a final decision should have been taken after solving the problems of these audits but instead of this a simple solution is made by extending the date for 2 Months. A big question arises here why ICAI is not having the last say in audit matters and why this apex body of auditors not taken into confidence before introduction of these formats in the middle of the year. Here it should be noted that we are talking about the audits which are completed before 25th July 2014 but "not uploaded" and since out of 180 days total allotted to complete the audits under section 44AB , there were 116 days passed up to 25th July 2014, the number the these audits is too large. The "midyear and sudden" changes in law and introduction of fresh forms are not natural, prudent, reasonable and logical actions and these should strictly be checked forever. How they will compare the reports which are uploaded before 25th July 2014 and on or after 21st Aug 2014(the day on which new schema was introduced on IT site) because both are in different formats. We have experienced 10 Continuous changes in the schema of TAR in 2013 so this possibility of same happenings cannot be ruled out this year also. A simple, logical, reasonable solution is that to postpone the applicability these Formats and made them applicable for the assessment year 2015-16 to save lakhs of these assesses mentioned above from the problems and further extend the date for only one month with Old TAR to compensate the 25 days blackout of the Income Tax site. ———————————— -CA Sudhir Halakhandi, -CA Abhas Halakhandi Halakhandi And Company, Chartered Accountants "Halakhandi", Laxmi Market, Beawar-305901(Raj) Cell- 9828067256, MAIL –sudhirhalakhandi@gmail.com E-Flash on Amendment made by Finance Act (No. 2), 2014Dear Professional Colleagues, Warm Greetings to you! The new government's maiden budget has been presented by Hon'ble Finance Minister Shri Arun Jaitley on 10th July 2014. This year's Budget is quite progressive and will spur investment-led sustainable and inclusive growth. It is quite evident that budget has announced far reaching reforms especially on the tax administration front. Union Budget 2014-15, focuses on fiscal consolidation and outlines a fiscal deficit target of 4.1% for 2014-15, 3.6% for 2015-16 and 3% for 2016-17. There had been promotion of FDIs in select sectors. Additionally, the funds have been infused for Bank Capitalization, PSU Capital Expenditure, Smart Cities, Irrigation etc. Funds and schemes for Senior Citizens and Women & Child Development have been designed. Education sector has also been given a boost by increasing the counts of IITs, IIMs, and AIIMS etc. A major reform is the virtuous news of approval of legislative scheme for introduction of much awaited Goods and Services Tax (GST). Direct Taxes have remained unfazed with a recalibration of tax slabs and increase in deduction and allowing higher amounts of investments. Indirect Taxes side also has seen some important changes. Advance rulings have been made available for resident private limited companies. Basic rate of excise remains same with minor changes in rates of duty in case of capital goods, consumer durables and automobile sectors. There are other changes like Customs rates have been rationalized, interest rate slab has been prescribed in service tax. Given the existing situation and considering the fact that the new government had a limited time to present the budget, the Finance Minister recognizing limited room for fiscal operations, has chosen to present a functioning budget, perhaps as a provisional measure and a prelude to concrete & gallant steps which India requires to take to revive its existing state of affairs. The Union Budget 2014-15 paves the way for a strong and vibrant economy. I am confident that this progressive and growth oriented budget would facilitate the emergence of a resurgent India. I am happy that Indirect Taxes Committee (IDTC), Direct Taxes Committee (DTC), Committee of International Taxation (CIT) and Committee on Public Finance and Government Accounting (CPFGA) jointly brought an E-Flash on Amendment made by Finance Act (No. 2), 2014 for the benefit of the members (please click to open the link). I express my appreciation to CA. Atul Kumar Gupta, Chairman, IDTC, CA. G. Sekar, Chairman, DTC, CA. Vijay Garg, Chairman, CPFGA and CA. Nihar Jambusaria, Chairman, CIT for this initiative and hope that members will find this E-Flash useful to comprehend the amendments in the Finance Act (No. 2). With kind regards, CA. K. Raghu President, ICAI Source- Email from ICAI Conversion of Co. into LLP subject to tax if loans extended to partners out of reserves of the erstwhile Co. August 21, 2014[2014] 47 taxmann.com 335 (Kolkata - Trib.) IT: Where a company was converted into assessee, i.e. a limited liability partnership, in view of fact that subsequent to conversion loan was given to partners who were directors in erstwhile company in their profit sharing ratio out of reserves and surplus of erstwhile company, there was violation of proviso (f) of section 47(xiib) and, therefore, benefit of provisions of section 47(xiiib) was not available to assessee-firm Central Excise CENVAT Credit - Dutiable and exempted goods - When credit is not taken on the inputs used in exempted goods, there is no need for separate records - Duty demand on sugar syrup with a shelf life of 24 hours set aside: CESTAT APPELLANT engaged in manufacturing of dutiable and exempted goods with common input for both kinds of products - Availed Cenvat credit of duty paid on inputs like sugar, various flavors, packing materials, furnace oil etc - Separate records are maintained and CENVAT credit is not availed in respect of inputs used for exempted goods as per Rule 6 of CENVAT Credit Rules 2004 - Benefit of Notification No.67/95 is clearly extendable - No evidence on record to demonstrate that separate records are not maintained or credit availed against exempted goods - Merely that no separate record is maintained with regard to sugar syrup used in the process which presumably has 24 hours of shelf life, without verifying its marketability and saleability, demand of duty held unjustified - Extraction of selective portion of statement convenient to the department in the show-cause notice to initiate proceedings and confirming demand without substantial evidence, deprecated - In view of the fact that the most important part of any investigation i.e. to ascertain facts, apply law to the facts and propose action in accordance with law has not been followed in this case, appeal allowed. Announcement on Court Verdict Modifying The Stay Order Dated 6 August 2014, By The Lucknow Bench of The Allahabad High Court on VAT. - (20-08-2014) ATTENTION OF MEMBERS ANNOUNCEMENT ON COURT VERDICT MODIFYING THE STAY ORDER DATED 6 AUGUST 2014, BY THE LUCKNOW BENCH OF THE ALLAHABAD HIGH COURT ON VAT |
| This is with reference to the order passed by the Lucknow Bench of the Allahabad High Court in the matter of Tax Lawyers Association & Anr. v/s State of U.P. & Ors. whereby only registered advocates were permitted to appear before the Authority under the VAT Act in the State of U.P. On applications filed by the Institute for impleadment and vacation of stay, the Hon'ble Lucknow Bench of Allahbad High Court has modified its order dated 6th August, 2014 and consequently Chartered Accountants would continue to be permitted to appear before the Authority under the VAT Act in the State of U.P. |
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