Friday, October 3, 2014

SC WRIT - NTT ACT, 2005 ultra vires the CONSTITUTION (cotd.)

 An Update

Supreme Court in Madras Bar Association v Union of India where it was held that Chartered Accountants and Company Secretaries cannot be permitted to appear on behalf of a party before the National Tax Tribunal.
e unauthorised practice of law.
Support has also been drawn from the judgement of the Bombay High Court in Lawyers Collective vs. Bar Council where it was held that even “drafting documents, reviewing and providing comments on documents, conducting negotiations and advising clients on international standards and customary practice relating to the client’s transaction etc. was nothing but practising the profession of law in non litigious matters”.



 Are Chartered Accountants Really Independent?


Nov 27

Why Tax Practitioners Bill-Needed?

<.....To counter the Hon’ble Supreme Court judgement rendered in the case of A.K.Balaji vs Union of India restricting the practice of law in India, both litigious and non litigious including commercial transactions,   to those who have enrolled under Bar Council, as per Sec.29 of the Advocates Act,1961...>
To counter the Hon’ble Supreme Court judgement rendered in the case of A.K.Balaji vs Union of India restricting the practice of law in India, both litigious and non litigious including commercial transactions,   to those who have enrolled under Bar Council, as per Sec.29 of the Advocates Act,1961 - See more at:



A taxing decision

The Supreme Court’s decision to strike down sections of the National Tax Tribunal Act, 2005 as un... »      1 comment

“In doing so, the Court perhaps failed to .... specialised fields such as taxation. "

<> The failure alluded to the apex court, in one’s conviction and firm view, is simply a figment of wild or self-defeating imagination /illusion. On the contrary, in holding, rightly so, that among others, section 13 (1) of the Act was unacceptable and ultra vires, the court, as is readily to be gathered, had obviously in mind why tax laws - direct or indirect, for dealing with highly technical, nay legal issues riddled with complexity galore, warrant true expertise and exposure , rather than a mere academic qualification.  Further, the constitutional  issues on hand could not have been decided, without being focused on the larger interests of the taxpayers as a community; hence expect the utmost need for suitable expertise and talents  on the part of anyone or more of the class of professionals aspiring to but to be  allowed to appear only to eminently and  purposefully represent.

For an insightful appreciation, in totality , of the issues adjudicated upon, the host of  material  floated across through websites and in public domain  might be of help and proper guidance.

<><> "While there can be no disputing the need to preserve the judiciary's independence, this should not be at the cost of dispensing with tribunals."
Apparently the crux of the apex court judgment has been tragically misunderstood. 

Perhaps, the principal issue would possibly happen to have been differently adjudicated had it been a National Tax Court (not a half-way concept hence faulted as  "tribunalization"),  in place of the age-old set-up of state wise high courts. Had that been so, perhaps, with an appropriate built-in mechanism/procedural rules, it might have been possibly ensured that judge-made law does not vary /keep varying from state to state as of now, but a uniformity/universality  is ensured across the board, to be binding , ideally so, for the whole nation.

Key Note:

Poser: Why is not possible to likewise try and ensure suggested uniformity/ universality even in regard to ITAT decisions; in matters involving a pure, simple and straightforward  "question of law" or a mixed question but with facts on all fours or no material or  significantly varying "facts and circumstances"  so as to yield a varying opinion on the aspect of law that entails ?

Simplification on such or similar lines, as may be imagined, should, one thinks, go a long way in securing the same speedy justice as vociferously canvassed for; and further, avoiding prolongation of dispute / litigation. More so, thereby achieve saving of infructuous litigation cost, - meaning saving of time and energy , otherwise proving wasteful, to one and all concerned- mainly the adjudicating judicial / quasi judicial authorities and representing professionals, -be it lawyers or others. .   Ultimately, the quality of adjudication should stand improved as a necessary consequence / inevitable  result. 

Tail Piece (e'flash) :

In the ICAI Journal of October 2014 (- with the cover page carrying the eye-catching message of, "Benchmarking CA Education withn the Best in the World) - , it is noteworthy that, a slew of measures have been indicated to be in the offing as the Way Forward ; that is, towards transition to "competence-based approach", with the avowed objective of, - "building competent professional accountants". Attention may be drawn to inter alia the article authored by the Director, Board of Studies, and Secretary , CRET, of the august body (and another) (Journal pages 499/55 to 511 / 67 ; which may have to be read and understood mindfully, in order to get to know intimately the core areas to be covered in the seemingly ambitious programme under way. 

Not Unrelated THESE  (in reference to THIS BLOG ?! >

About 5,570 results (0.40 seconds) 

Search Results

SEBI V IRDA – Unfolding Turf War” - TaxGuru
Cross Refer (related previous blogs) >


OECD on Public Enforcement of Corporate Governance in Asia

Courses of Action Or Remedies Open

Class Action by public / segments of taxpayers 

PIL- Private / class , OR By Court (SC), Suomotu

Right To

Representation (legal; in court or other authority)

Authority x Tribunal x Court

Is IT Not A Human Right (Contractual ; POA)

On the Faith and Belief of the Rep (appointed)

Breach of trust, faith..

Case Law (Indian /Foreign)

Professionalism X Professional Ethics >>>>

Xtract (selective)
 There are essentially two forms of enforcement, viz. public and private. Public enforcement is pursued by the state or the regulator against errant parties. Such action may either be initiated suo moto or based on a complaint or request received by it. Public enforcement is usually targeted at the errant party, and to ensure deterrence. Private enforcement, on the other hand, is initiated by an affected party before a civil court or other appropriate forum. Such an action is also pursued by such private party at its own cost. Private enforcement focuses on the affected party, and largely operates to restitute or recompense the victim. While public and private enforcement are both necessary, they perform somewhat different roles. In that sense, an appropriate mix of the two methods may be necessary in an ideal securities market.
Master NOTE :

In one's forthright and sincere perspective, it appears, nay honest feeling is, -  there is no dearth of scope, for new Ideas , for betterment , for the common good, of the LEGAL SYSTEM; more so, expeditiously- Should there be WILL most certainly there ARE WAYS AND MEANS to accomplish the said IDEAL:

To be Brief:
Keeping in sharp focus the inevitability, inherent irresoluteness, imbecility, infantile belief in relief through court litigation,  and the like, OF, -
Low Arousal , Want of Awareness/ Awakening , corrupt- minds /- practices, being the inescapable  REALITY / Order of the DAY

Through Legislation or even Otherwise ,-

I. Standardization of  DOCUMENTATION ( Contract Agreement, POAs, Written Questionnaire, Ans. - simply YES or NO ! Submissiins of both Sides "Parties)

Not Valid /Registrable IF NOT per Standard  Format OR without all clues / terms and Conditions strictly in 

II. Provide For Class Action; also for PIL more suo motu (in a way reduce mounting Pend-ency, Prolongation, impairing quality of adjudication / not-so-impartial  'justice'.

III Tuning up the FUNCTIONS (ethics, so on) of law enforcing authorities
     Education ( ?) and Practical Training of, ON A Continuing basis, of - 

     Key authorities, Professiinals , AND OTHER CONNECTED  functionaries

IV. Widen the coverage of the root concept of - "PUBLIC SERVANT" , specifically fix the respective Responsibility, direct Answerability, with attached penal and other consequences (suspension from, deterrent punishment. ....?)

V. A Super Regulatory (like for serious economic offences) -  in overall, exclusive and effective  CONTROL, MONITORING , et al 



Comments (Selectively consider4ed)
  1. Ramani Ram says:
    The ruling w r t NTT is one sided in favour of advocates. CAs are not just specialists in accounts and acts.There are many cases where the substantial question of law has been interpreted well by CAs. Our fraternity should see inf steps could be taken to save the space lost by CAs.
    • Subash Agarwal says:
      Mr Ram one fails 2 understand when CAs have argued on “substantial questions of law” U had no occasion 2 do that becaz it is argued before the high court n supreme court. If any CA has such desire he an acquire a LL.B degree n undergo training under an advocate practising before a high court on taxation side. I know some CAs exactly doing that and r practising in high cour after relinqishing their right 2 pactice as CA
      U have no other way 2 ” save d space lost by u”. Becaz d judgement is fm a constitution bench of SC & there is no court above honble SC. Pl also note no further statutory amendment is possible as SC has examined d issue fm d standpoint of constitution of India. So dear frnd accept d verdict gracefully . U have a lot to do as entrusted by the CA Act.So dont lament for something that justifiably didnt belong 2 u.

      <To be Read wrt / tw his other comments
   Key Note:

    Suraj Lamp Ind. (SC)
Suraj Lamp & Industries (P) Ld.Tr.Dir. Vs. State of Haryana & ANR. [2009] INSC 1099 (15 May 2009)

< 5.     The `Power of Attorney Sales' as a method of `transfer' was evolved by lawyers and document writers in Delhi, to overcome certain restrictions on transfer of flats by the Delhi Development Authority (for short `DDA').
DDA had undertaken large scale development by constructing of flats. It is stated that when DDA allotted a flat to an allottee, any transfer of the assignment by the allottee required the permission of DDA and such permission was granted only on payment to DDA of the `unearned increase', that is the difference between the market value/sale price and the original cost of allotment. To avoid the cumbersome procedure in obtaining permission and to avoid payment of the huge part of the price to the DDA as unearned increase, a hybrid system was evolved whereby the allottee / holder of the flat, on receiving the agreed consideration would deliver the possession of the flat to the purchaser and execute the following documents :
(a)An Agreement of sale confirming the terms of the sale, delivery of possession and payment of full consideration and undertaking to execute any document when required in future.
(b)An Irrevocable General Power of Attorney in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
(c)A will bequeathing the property to the purchaser as safeguard against the consequences of death of the vendor before transfer.
6.     The `Power of Attorney Sales', as noticed above was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser. However, the Delhi High Court in a few cases accepted such `Power of Attorney Sales' as creating an `interest' in the DDA flat which was so `transferred' and consequently, protected such interest of the purchaser by issuing injunctions or decrees preventing the vendor from further dealing with the property. This led to a general impression the `Power of Attorney Sales' were valid recognized modes of transfer and the very purpose DDA prohibiting transfers and requiring permission on payment of certain difference in price was defeated by this process.
7.     What we are concerned is extension of the concept of such `Power of Attorney Sales' by execution of SA/GPA/Will with reference to freehold properties.> 


Re -quotable, to reiterate / reinstate (with the utmost painful feeling from the heart):

As Nani, in effect, said:

<Administration of justice suffers so much from the intractable complexity of modern society; as 'life' has become far more complex, corruption and all –round lowering of standards are far more pronounced than ever before.

All the time we unduly emphasize / keep harping on our "rights" but don’t lay, -consciously and deliberately, all the same treacherously, -corresponding stress on our responsibilities part. Our constitutional  ‘fundamental duties’ has been a dead letter from the moment it was enacted by the 42 nd Amendment Act 1976. But then what one , in the context herein, is talking about is not the 'fundamental rights', but more onerous ; and fundamentally supposed to be regarded as sacrosanct to be honored , "Contractual Rights"as agreed or implied.


A lawyer with a well furnished mind alone can be truly a counsellor at law; he alone can, not merely look up precedents, but guide his client along the path of wisdom, even of generosities which may appear irrelevancies to the preoccupied client. In the hands of such a lawyer, the law represents the application of reason to noble and purposeful ends. 

Man has been defined as a rational animal. But you cannot live in India without being constantly reminded that this definition was given to man by man himself in a characteristic moment of self-adulation.  >

 (Source: Renowned legal legend par excellence , N A Palkhivala's published public speeches AND published lectures - recommended Books > We, the Nation, WE, THE PEOPLE - UPSPD)

Worthwhile to realize, at least now / late than never, that unless the "right signals" not-so difficult-to-be -sighted in all its blaze,  lately received from the judiciary, the one and only authority "equipped" and so "empowered" to "interpret" the CONSTITUTION in a manner that it serves its underlying objective of " social purpose", by wisely deciding to "changing the course" fittingly, the entire edifice of legal system is bound to be propelled and forced to reach lower and lower levels; and eventually, to meet the fate of abruptly falling like a castle of playing cards . 

Just as every other known 'concept', - 

Law / case law is what is – not what one thinks or imagines, or believes, or wishes - it to be!

Cross Refer


<Legal System - Law v Case Law


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