Appearance & Audit under GST Law

Indian Legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Section 29 of Advocator Act, specifies that Advocator alone are entitled to practice the profession of Law & Section 33 of Advocates Act specifies that Advocates alone entitled to practice the profession of law before any Court or before any authority or person. Bar Council of India Vs A.K.Balaji [SLP (Civil) No(s) 17150-17154/2012] 4.7.2012 (SC) & A. K. Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (HC) it was clearly held by Apex Court & Madras HC that Advocates alone are entitled to practice the Profession of Law both in litigious and non-litigious matters.

(2) Legal profession in India governed by Advocates Act and the disciplinary rules and regulations, code of conduct and professional ethics framed & practiced from time to time. There is also a hierarchy of disciplinary authorities such as the State Bar Council, Bar Council of India, Supreme Court, etc. These authorities can exercise their disciplinary authority/control only over the Advocates who are on the Rolls maintained under the Advocates Act Any person who is not subject to disciplinary control of the above said authority if allowed to practice the profession of law, he/she would go scot-free and would not be subject to the supervision and the disciplinary jurisdiction of the above said authorities. Professional misconduct in the course of “Practice of Law” purely covered under Advocates Act read with Bar Council of India Rules in India. i.e, only Bar Council in India issued license to enrolled Advocates to practice law in India & take action for professional negligence. Chartered Accountants neither licensed to practice law to enable his/her professional body to take action for professional misconduct nor any out side agencies charge them for professional negligence.

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(3) Audit means verification, depending on the purpose they are classified as Energy Audit, Environment Audit, Product Audit, Process Audit, Pollution Audit, Legal Audit in USA & Tax Audit in Indian Income-Tax Act. Here, person conducting audit should be specialized in that particular Subject Hence, Audit in GST Law is the domain of Law Professionals. In conclusion, only person licensed to practice law in India should issue Audit Certificate under GST Law. If such authority for Appearance & audit given to Chartered Accountants, situation may arise that order of assessing authority in proposed GST Law, passed against the audit & representation of Chartered Accountant become in-fructuous, bad in law, null & void, as it amounts to passing of the order without giving an opportunity of being heard to the assesee. Further, such orders can not be enforced by the Deptt. to recover revenue demand raised.

A.K. Balaji Vs. Government of India

(2012) 35 KLR 290 (Mad.)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.02.2012

HEAD NOTE:-

Advocates Act, 1961 – There is no bar for foreign lawyers or law firms to visit India for temporary periods on a “fly in and fly out” basis to advise their clients on foreign law and diverse international legal issues. They are however not permitted to practice Indian law, either in relation to litigation or advisory matters, unless they qualify and enroll as advocates and fulfill the requirements of the Act and Rules. The activities performed by BPOs and LPOs do not constitute practice of law and hence do not conflict with the Act. The Bar Council of India may take necessary steps in relation to the practice of law by chartered accountants and management firms, which is contrary to the Act.

Bar Council of India Vs A.K.Balaii

IN THE SUPREME COURT OF INDIA
S. L. P. (Civil) No(s).17150-17154/2012
DATED : 04.07.2012

HEAD NOTE:-

In the meanwhile, it is clarified that Reserve Bank of India shall not grant any permission to the foreign law firms to open Mason offices in India under Section 29 of the Foreign Exchange Regulation Act 1973. It is also clarified that the expression “to practice the profession of law” under Section 29 of the Advocates Act 1961 covers the persons practicing litigious matters as well as non-litigious matters other than contemplated in para 63(6) of the impugned order and, therefore, to practice in non-litigious matters in India the foreign law firms, by S.L.P. (Civil) No(s).17150-17154/2012 whatever name called or described, shall be bound to follow the provisions contained in the Advocates Act 1961.

Madras Bar Association Vs Union of India

IN THE CONSTITUTION BENCH OF SUPREME COURT OF INDIA

National Tax Tribunal Case No.150 of 2006
DATED : 25.09.2014

HEAD NOTE:-

Keeping in mind the fact , that in terms of Section 15 of the NTT Act , the NTT would hear appeals from the Income Tax Appellate Tribunal and the Custom , Excise and Service Tax Appellate Tribunals (CESTAT) only on “Substantial Questions of Law”, it is difficult for us to appreciate the propriety of representation , on behalf of a party to an appeal , through either Chartered Accountants or Company Secretaries , before NTT. The determination at the hands of NTT is shorn of factual disputes. It has to decide only “Substantial Question of Law”. In our understanding, Chartered Accountants and Company Secretaries would at the best be specialists in understanding and explaining issues pertaining to accounts. These issues would, fall purely within the realm of facts . We find it difficult to accept the prayer made by the Company Secretaries to allow them to represent a party to an appeal brfore the NTT . Even insofar as the Chartered Accountants are concerned , we are constrained to hold that allowing them to appear on behalf of a party before the NTT , would be unacceptable in law . We accordingly reject the claim of Company Secretaries , to represent a party before the NTT . Accordingly the prayer made by Company Secretaries in Writ Petition (Civil) No. 621 of 2007 is hereby declined. While recording the above conclusion, we simultaneously hold Section 13 (1) , insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, unconstitutional and unsustainable in law .

Opinion of Supreme Court of New Jersey, USA

(Advocates can practice both law & public accounts)

HEAD NOTE:-

The court must have had some kind of vision of the professional world converging in the future, for as early as 1964, it set rather interesting ground rules into place for the cross-employment restrictions of Legal and CPA professionals. In Opinion 23 (January 9, 1964), the court was asked: “May a member of the Bar of New Jersey engage in the practice of law in this State simultaneously with the practice of public accounting?” In response, the court’s opinion states:

“… we find that the dual practices of law and accounting … by lawyers would not violate the Cannons of Professional Ethics. Nor does it appear to us that any other rules of our Supreme Court would be violated by such dual practices….”