Update
ON Top >
BL
<<
SC strikes down National Tax Tribunal Act - The Hindu
Related
>>>>>
TG
Dec 12
Partiality with Tax Advocates since 1984
ICL
OECD on Public Enforcement of Corporate Governance in Asia
http://vswaminathan-swamilook.blogspot.in/2014/10/law-and-reguations-pubic-private.html
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 >>>>
<<<
TG
Shome Panel submits Second Report on Tax Administration
wprt the latest SC on NTT ACT
< Its related implications worth a study !
Legislation >
X Judiciary
Ind Exp
https://disqus.com/home/user/venkatswami
>>>>
Tail Piece
Ammunition ? Not to Worry (yes? Yes !)- Never ever in short supply; thanks to Producers / Suppliers (financial papers/ Column Writers) !!
ET
ET
For A Ready Glimpse :
itatonline
The NTT Act “crosses the boundary” & is unconstitutional. CAs/CSs are specialists on accounts & facts and are not capable of arguing/ deciding ‘Substantial Questions Of Law’
BS
Xtract (For Special Focus):
< A five-judge constitution Bench of the Supreme Court on Thursday struck down the National Tax Tribunal Act, on the grounds that it encroached upon the power of the judiciary and the principle of separation of powers.
The Act envisaged setting up a National Tax Tribunal (NTT) to take up tax-related matters of high courts so that decisions on tax disputes could be expedited. The tribunal never came into being as petitions were filed against the law in courts.
The 2005 law was stuck in litigation in high courts. All cases were then transferred to the Supreme Court for a final decision. >
See other - phrases and sayings from Shakespeare
Not Unrelated THIS >
Refer the article, -
Government as a client before courts of law | Business Line;
and my posted comment >
< A Breath-taking, nay -stopping , of an obnoxious kind, Episode THIS
Misc.
- See more at:
http://taxguru.in/chartered-accountant/appearance-cas-ntt-unconstitutional-sc-quashes-law-setting-national-tax-tribunal.html#comment-1207239
ON Top >
BL
Idiom > Upset the Apple Cart
Origin
This allusory phrase is first recorded by Jeremy Belknap
in The History of New Hampshire, 1788:
"Adams had almost overset the apple-cart by
intruding an amendment of his own fabrication on the morning of the day of
ratification" [of the Constitution].
<<
SC strikes down National Tax Tribunal Act - The Hindu
Related
National Tax Tribunal Supplementing, or substituting, High Courts?
Xtracts (2005 - Intriguing ?)
> No Tribunal constituted under 323A or 323B of the
Constitution can ever oust the jurisdiction of the high court under
Articles 226/227 of the Constitution. The writ jurisdiction of the high
court will continue, despite the provision that appeals from the NTT
will go to the Supreme Court (228 ITR 725 SC). The NTT will, therefore,
be one more forum working along with the high court.
>> The Government makes it appear that there is huge pendency before the
various high courts involving fiscal disputes. The truth seems to be
that the overall tendency does not exceed 30,000 cases, the maximum
being around 10,000 in Mumbai and an equal number in Delhi. Probably,
constitution of permanent tax benches in these two High Courts will
solve the problem for revenue.
>>>>>
Dec 12
Partiality with Tax Advocates since 1984
ICL
OECD on Public Enforcement of Corporate Governance in Asia
http://vswaminathan-swamilook.blogspot.in/2014/10/law-and-reguations-pubic-private.html
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 >>>>
<<<
TG
Shome Panel submits Second Report on Tax Administration
wprt the latest SC on NTT ACT
< Its related implications worth a study !
Legislation >
NTT Act 2005 - Ministry of Law and Justice
X Judiciary
Ind Exp
- Indian Express - 1 day agoWar of blunt positions ... another spectre is haunting India: chronic regulatory malfunction. ... But corruption is only a small part of the story.
The courts are from Mars and the legislature is from
Venus. And the requisite dialogue to create a shared constitutional
understanding is not happening.
But how many of you want to bet money that even a
good-faith legislation will not be tripped up somewhere for being incompatible
with some other law?
In the tax tribunal case, the Supreme Court has contended
that the tribunal had not just usurped the powers of the high court, but that
the methods of appointment and so forth do not conform to the norms of
independence that might be required for a court-like tribunal. Fair enough. But
is it clear what standard continued… continued…
CD
Not Unrelated THESE (in
reference to THIS BLOG ?! >
Anyway THESE >
About 5,570 results (0.40 seconds)
Search Results
“SEBI V IRDA – Unfolding Turf War” - TaxGuru
>>>>
Tail Piece
Ammunition ? Not to Worry (yes? Yes !)- Never ever in short supply; thanks to Producers / Suppliers (financial papers/ Column Writers) !!
ET
ET
Supreme Court quashes National Tax Tribunal Act - The ...
Prof.T.Devidas (Bangalore) What
the Court must recognize is that tax laws seek to change the ownership
and control of material resources of the community and this is reserved
for the legislature and the executive by Art.39(b) and Art.37 shuts the
door for the judiciary here.The
Union government must seek a review of the judgement which is
per-incuriam for disregarding the provisions in Articles
37, 39(b)and14.The government should invoke the provisions in Part.IV and
ask the Court to keep off prohibited areas.
For A Ready Glimpse :
DPSP - Directives Principles of State Policy - OmABC
www.omabc.com/national/constitution-of-india/frs-dpsp/dpsp/
Mar 7, 2014 - Constitution of India ... Article 39 – a) secure adequate means of livelihood for all citizens, ... But article 37 says that it shall be duty of state to apply provisions of DPSP in formulation of laws and policies. Article 31C added by 25th constitutional amendment, 1971 and include following two provisions:-.
lawmin.nic.in/olwing/coi/coi.../Const.Pock%202Pg.Rom8Fsss(7).pdf
37. Application of the principles contained in this
Part.—The provisions contained in ... THE CONSTITUTION OF INDIA. 20. 39A.
Equal justice and free legal aid.
itatonline
September 25th, 2014
 |
The NTT Act “crosses the boundary” & is unconstitutional. CAs/CSs are specialists on accounts & facts and are not capable of arguing/ deciding ‘Substantial Questions Of Law’
BS
Supreme Court quashes National Tax Tribunal Act
Xtract (For Special Focus):
< A five-judge constitution Bench of the Supreme Court on Thursday struck down the National Tax Tribunal Act, on the grounds that it encroached upon the power of the judiciary and the principle of separation of powers.
The Act envisaged setting up a National Tax Tribunal (NTT) to take up tax-related matters of high courts so that decisions on tax disputes could be expedited. The tribunal never came into being as petitions were filed against the law in courts.
The 2005 law was stuck in litigation in high courts. All cases were then transferred to the Supreme Court for a final decision. >
Q
The Full Bench has struck down the entire Act as being
unconstitutional on the ground that though “tribunalization” has been
allowed subject to safeguards, the NTT Act “crosses the boundary” and “encroaches the exclusive domain” of the High Courts.
The Members of the NTT would most definitely be confronted
with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law,
Company Law, Law of Partnership, Law related to Territoriality, Law related to
Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law
relating to Intellectual Property, Interpretation of Statutes, and other
Miscellaneous Provisions of Law, from time to time. The NTT besides the
aforesaid statutes, will not only have to interpret the provisions of the three
statutes, out of which appeals will be heard by it, but will also have to
examine a challenge to the vires of statutory amendments made in the said
provisions, from time to time. They will also have to determine in some cases,
whether the provisions relied upon had a prospective or retrospective
applicability. Keeping in mind the fact, that in terms of s. 15 of the NTT Act,
the NTT would hear appeals from the Income Tax Appellate Tribunal and the
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 the NTT....... We simultaneously hold s. 13(1), insofar as
it allows Chartered Accountants to represent a party to an appeal before the
NTT, as unconstitutional and unsustainable in law.
- Aside: The SC does have gone into the validity or otherwise of some of the sections in the scheme of the NTT e.g sec 13; and made certain observations (see above). Even so, if analyzed closely, the better view to take,- contrary to the one projected/being canvassed in some quarters,- will be THIS: The validity, legal acceptability, etc. of those sections have been argued/discussed, at some length. But the court has done so, only in the course of and for deciding the principal issue ; that is, whether the proposed of NTT, has a strong foothold, as to firmly stand on, so as to be upheld as vires the constitution. Even if perceived differently, to say that the SC has not borne in mind that once the scheme itself is struck down as ultra vires, all the rest would pale into insignificance/ are bound to fall like a pack of cards , would be, to put it in the least offensive manner, tantamount to offending the judicial intelligence.
<> The Judgment has been delivered, and particularly some of the
cryptic observations therein have come to be made, not a day too soon.
In one’s perspective, it has come at a very opportune and appropriate
point in time. In that, to begin with and at the outset, at least selectively, the judicial view might be made a
conscious note of, and full use of for guidance, by the men in
governance, - no doubt, not barring the legislators,- to mindfully deliberate and decide
how best , in the “larger national/societal interests”, the entire
‘legal system” , in its most comprehensive sense / all embracing
meaning, could be impartially evaluated and ideally revamped. Though, of
course, that should be capable of being done, in as feasible a manner as human intelligence and integrity (in
profound sense) be endowed/empowered to permit. What in any view is expected of them is that must be thought of and proceeded with, post haste, with the sole aim of
restoring the fundamental ‘objective’ of any legal system; and thereby,
what the age old concept of “law and order” has to be taken to indisputably / unquestionably signify . In short, the
time is not but fully ripe now, than ever or if not before, for taking with the utmost seriousness the “right (nay, righteously wise ) signals”
transmitted by the highest court of the nation, to strive for and
accomplishing the “course correction(s)” – deliberately being short
(over?) sighted hence remained long outstanding.
(Left open wantonly, with a fervent wish / Invitation to EDIT)
KEY NOTE: It is noteworthy that, this is the second noted instance, that too within a short span in time scale, the apex court has chosen to send / broadcast strong signals, cautioning why the need for such course corrections, as warranted, having obviously in mind the increasingly changing "legal system", and its functioning, from bad to worse.
To be precise, for a professional, lawyer or CA to say that he has a right to practice a profession of his choice. But that is no way to say, - verging on imbecility, insanity -to have a right to practice, represent/appear , -
(A) either or both simultaneously;
(B) before any authority, not only 'tribunal', but also a 'court';
(C) whether or not suitably and properly, albeit being besides academically qualified, 'equipped' OR MENTALLY PREPARED TO BE, so as to take a reasonably good care, by striving and protecting the client's rights and interests; and
(D) regardless of the blatantly damaging grave consequences. repercussions, entailed/ potent with, not only to the given client, but to the tax paying community as a whole, and in turn, to the society , so also, in the ultimate analysis, the Government itself.
The root cause of it all is traceable to / lies in the legislation, impulsively and recklessly made, with no regard to the brink of disaster the vested interests, exclusive of only the favored professionals, are going to be pushed into.
To be precise, for a professional, lawyer or CA to say that he has a right to practice a profession of his choice. But that is no way to say, - verging on imbecility, insanity -to have a right to practice, represent/appear , -
(A) either or both simultaneously;
(B) before any authority, not only 'tribunal', but also a 'court';
(C) whether or not suitably and properly, albeit being besides academically qualified, 'equipped' OR MENTALLY PREPARED TO BE, so as to take a reasonably good care, by striving and protecting the client's rights and interests; and
(D) regardless of the blatantly damaging grave consequences. repercussions, entailed/ potent with, not only to the given client, but to the tax paying community as a whole, and in turn, to the society , so also, in the ultimate analysis, the Government itself.
The root cause of it all is traceable to / lies in the legislation, impulsively and recklessly made, with no regard to the brink of disaster the vested interests, exclusive of only the favored professionals, are going to be pushed into.
Cross Refer:
< Appearance of CA before NTT as representative is unconstitutional; SC quashes law for setting up NTT on TaxGuru!
< Appearance of CA before NTT as representative is unconstitutional; SC quashes law for setting up NTT on TaxGuru!
<<<<Taxation
Law (s) – 'INTENT ' vs Explicitness - TaxGuru
Spl. Mark >
http://mvenkaiahnaidu.blogspot.in/2009/07/sri-m-venkaiah-naidu-major-initiatives.html
http://vswaminathan-swamilook.blogspot.in/2014/09/om-namo-narayana-contd.html
GPA Sale (SC)
Xtract :
< Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty>
<CA club - ref. his viewpoints on SC
Section 2(47)(v) may hit by change in 53A of the TP Act
Section
2(47)(v) may hit by change in 53A of the TP Act
MORE >
Spl. Mark >
http://mvenkaiahnaidu.blogspot.in/2009/07/sri-m-venkaiah-naidu-major-initiatives.html
http://vswaminathan-swamilook.blogspot.in/2014/09/om-namo-narayana-contd.html
GPA Sale (SC)
www.legalservicesindia.com/.../topic266-suraj-lamp-and-industries-p-vs-...
indiankanoon.org/doc/1565619/
"GPA" Transaction- valid ! (Del..HC) - swamilook - Blogger
vswaminathan-swamilook.blogspot.com/.../gpa-transaction-valid-delhc.h...Xtract :
< Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty>
<CA club - ref. his viewpoints on SC
Section 2(47)(v) may hit by change in 53A of the TP Act
MORE >
7 July, 2011 - Bank
of New England II - Revisiting The Rule of Explicitness (aka, in case we
weren't ... (The first decision is HSBC Bank USA v. ... By way of
background, the Rule of Explicitness, long a feature of common law
governing the ...
www.law.cornell.edu/supremecourt/text/5/137
In cases of commissions to public officers, the law
orders the Secretary of ..... Baker et al., states with much precision and explicitness
the cases in which this writ ...
books.google.co.in/books?isbn=0199692327 -
Article 6 impliedly confers a
right to 'legal assistance'123 whereas at common law, ...
implicit in the common law concept of a fair hearing, the explicitness
of the ECHR's ... 119 Secretary of State for the Home Department v AF [2009]
3 WLR 74.
>>>>>>>
http://praja.in/en/blog/m...
>>>>>>>
http://praja.in/en/blog/m...
Legal System - Law v Case Law
Submitted by vswami on 26 September 2014 - 8:43am.
TG
"Appearance of CA/CS before NTT is unconstitutional" ?
MASTER KEY NOTE:
@TG
In case, by any chance, the idea in the minds of the anyone or more of the rest is to know what others have to say, on the merits or otherwise of the view the apex court has, in its judicial wisdom, and guided by laudable and accepted principles to render judiciously its opinion and thereby, justice, taken, on the principal point of issue itself, may, -though not i am obligated, but as a matter of common courtesy,- recommend to look up also the other related websites / financial papers , adequately covering the self-same topic.
PS: Mr Sandeep - My personal request/sincere suggestion to you, in own interests, is to try and ensure, through proper moderation, that, your website is used as a forum for anybody to comment on the subject matter or any aspect incidental thereto, on the line of each one’s individual / independent line of thinking; not to be converted into a forum for any type of ‘debate’ or ‘arguments’ as herein, heated or emotional and the like, more so aimed at solely on/ targeting the comment of any one else. Especially on any aspect on which there could always be an answer, – YES or NO; AND NOT / NEVER A One-sided,- “Yes” OR “NO”; unlike as from a court, the only so far known constitutional authority empowered to ‘adjudicate’ or issue a writ. Any suggestion or diktat , to adopt, for framing a comment, any particular type of language the reader could understand is too much to ask for; and verges on abject poverty of imaginative thinking / absurdity , reflecting the trait of 'egoism' on the part of the suggester.
Updated @ http://praja.in/en/blog/m...
Most of the points sought to be stressed , that is advanced and in finding an answer to the basic question, - whether the SC is right or wrong in holding the NTT as ultra vires, have been centered on the other related question why CAs, same way as 'lawyers', have no 'right to appear and represent a tax client before NTT. Reliance has been placed on inter alia section 13 (1) in the Act. As pinpointed, the institution of NTT not having been allowed to come into being, the right of CAs to rise and represent a tax client before the NNT Bench has been nipped in the bud; rendered a non-starter. May be, if , as suggested in some quarters, in the likely event the issue is decided and accordingly pursued/agitated in further proceedings, and in the event the judgment comes to be reversed, and so also section 13 (1) happens to be upheld as constitutionally valid, then alone the CAs' claim (of right to appear and represent) will fructify.
Certain other vital facet , though on the flip side, would also, as expected, rather necessarily warranted, happen/might have to be urged for or against. That is, -whether or not a person, simply by reason of his having "qualified" as a CA and holding a COP, be righteously regarded to be so equipped, at least reasonably, so as to enable him to represent a tax client before, also ably and effectively/fruitfully assist, the Bench in discharging its function of administering justice. This is an aspect which necessarily will require to be gone into, and considered from all conceivable angles, but from the viewpoint of the ultimate "beneficiary" (the serviced) namely, the client, and him alone; for, after all, he is the pay master of the engaged CA, the service provider, believing/placing faith that he is so equipped and be relied on to serve his purpose. In other words, not but not in the least, that also calls for bearing in mind that the quality/ right or wrong of the judgment of the Bench entirely depends on the quality of the representation the client in all fairness normally expects and is factually and actually so provided with.
One of the aspects also doubly underlined, if not so explicitly but very much impliedly in the judgment, is the reality/fact of life that the adjudication would have to be on any "substantial question of law"; and further, a tax issue cannot be decided only on the basis of what the tax law provides but also having equal regard to, taking into consideration, one or more of the other inter-connected (-related) laws, in so far as the tax issue cannot be decided on a stand-alone-basis/sans those other laws.
Aside:
Reminds of, -
Kettle calling the pot black; or mutual comparison, will be meaningless.
In this context, attention requires to be drawn to / laser focused on some of the judicial (SC) pronouncements , which have been the subject matter of a critical analysis; which inter alia are these:
For that matter, in the referred published critiques , a mention has been made , albeit briefly, of the not-so-active or positive but rather a negative role played / contribution evinced by the representing counsels in those court cases.
.....
Sec 13 (1), in a manner of speaking, is another instance of "impulsive legislation"; comparable and next not only to legislation of LLP and its incorporation in the main stream of company law....
Note: The justification sought to be made out/reasoning canvassed for CAs, OBVIOUSLY UNWITTINGLY, but simply by comparing the competitor- profession of "lawyers"/the related prevailing state of affairs in the field of law practice prima facie do not seem to make much sense , or carry even an iota of courage of conviction; much less, all the sense to support CAs' case. For, to say, own lack of competence or of dependability will have to be apprised by the yardstick of comparison with the other(s), certainly cannot be expected to be accepted , readily, and without offending one's own common sense. In any view, no need to add, the competence or otherwise of a 'lawyer' to represent a tax client before not only court but any other 'authority' would obviously and undoubtedly entail the same importance, besides repercussions or consequences to clientele, same as in case of CAs.
TG
MASTER KEY NOTE:
@TG
·Rejoinder (meant to be taken as COMPREHENSIVE AND
FINAL):
To whomsoever it may concern
Own further comment in any form, on my own comment which
was entirely confined- if read carefully, – to a selected simple point of
ongoing controversy, is not warranted. The posted comment was not intended to
be misunderstood or misconceived by any other for his own reasons, even by erring on a wrong side, as a comment on the right or
wrong of the ‘judgment’ as a whole. i would be wrong if i do so. For, that is a
matter of the topmost overwhelming intricacies galore. and ought to be
valiantly fought out by either party (including the ones with own interests
who, later, on intervention, came to be imp-leaded), if so decided to the
FINISH (ING Line) at his own peril and cost.
Me, neither being a lawyer or CA , or any other
professional, in active practice, much less one who, even secretly or remotely,
believe to be a law or accounting, or any other, ‘expert’,- more so , in any
case, not being a judge to proffer any empathetic or so emphatic as to drive/force anyone to take it , unwisely so, as sacrosanct, Answer,- ‘Yes’
or ‘No', that too to be binding; simplistically, going by the dominant dictates
of PRUDENCE.
In case, by any chance, the idea in the minds of the anyone or more of the rest is to know what others have to say, on the merits or otherwise of the view the apex court has, in its judicial wisdom, and guided by laudable and accepted principles to render judiciously its opinion and thereby, justice, taken, on the principal point of issue itself, may, -though not i am obligated, but as a matter of common courtesy,- recommend to look up also the other related websites / financial papers , adequately covering the self-same topic.
PS: Mr Sandeep - My personal request/sincere suggestion to you, in own interests, is to try and ensure, through proper moderation, that, your website is used as a forum for anybody to comment on the subject matter or any aspect incidental thereto, on the line of each one’s individual / independent line of thinking; not to be converted into a forum for any type of ‘debate’ or ‘arguments’ as herein, heated or emotional and the like, more so aimed at solely on/ targeting the comment of any one else. Especially on any aspect on which there could always be an answer, – YES or NO; AND NOT / NEVER A One-sided,- “Yes” OR “NO”; unlike as from a court, the only so far known constitutional authority empowered to ‘adjudicate’ or issue a writ. Any suggestion or diktat , to adopt, for framing a comment, any particular type of language the reader could understand is too much to ask for; and verges on abject poverty of imaginative thinking / absurdity , reflecting the trait of 'egoism' on the part of the suggester.
Again, incidentally, kindly note, the need for my such a
rejoinder would not have arisen or been realized by me, but for the fact that i
per chance / sheer accident happened to have a re -look herein, plainly wanting
to know/ get a feedback as to what the other readers, presumably enlightened in
their own way, have had to say.
Anyone participating or interacting through such websites, with the purpose of common good in mind or not, ought not to forget that, anyone else so doing wholly for the common good and with an impartial outlook is neither a paid or obedient servant of the former or at his command.
Time for me to say to self, after a really painful but thankless participation - there being no real purpose envisaged or expected to be served anymore, in immediate vision, more so for the common good,- Adieu.
Time for me to say to self, after a really painful but thankless participation - there being no real purpose envisaged or expected to be served anymore, in immediate vision, more so for the common good,- Adieu.
· - See more
at: http://taxguru.in/chartered-accountant/appearance-cas-ntt-unconstitutional-sc-quashes-law-setting-national-tax-tribunal.html#comment-1207239
Updated @ http://praja.in/en/blog/m...
Most of the points sought to be stressed , that is advanced and in finding an answer to the basic question, - whether the SC is right or wrong in holding the NTT as ultra vires, have been centered on the other related question why CAs, same way as 'lawyers', have no 'right to appear and represent a tax client before NTT. Reliance has been placed on inter alia section 13 (1) in the Act. As pinpointed, the institution of NTT not having been allowed to come into being, the right of CAs to rise and represent a tax client before the NNT Bench has been nipped in the bud; rendered a non-starter. May be, if , as suggested in some quarters, in the likely event the issue is decided and accordingly pursued/agitated in further proceedings, and in the event the judgment comes to be reversed, and so also section 13 (1) happens to be upheld as constitutionally valid, then alone the CAs' claim (of right to appear and represent) will fructify.
Certain other vital facet , though on the flip side, would also, as expected, rather necessarily warranted, happen/might have to be urged for or against. That is, -whether or not a person, simply by reason of his having "qualified" as a CA and holding a COP, be righteously regarded to be so equipped, at least reasonably, so as to enable him to represent a tax client before, also ably and effectively/fruitfully assist, the Bench in discharging its function of administering justice. This is an aspect which necessarily will require to be gone into, and considered from all conceivable angles, but from the viewpoint of the ultimate "beneficiary" (the serviced) namely, the client, and him alone; for, after all, he is the pay master of the engaged CA, the service provider, believing/placing faith that he is so equipped and be relied on to serve his purpose. In other words, not but not in the least, that also calls for bearing in mind that the quality/ right or wrong of the judgment of the Bench entirely depends on the quality of the representation the client in all fairness normally expects and is factually and actually so provided with.
One of the aspects also doubly underlined, if not so explicitly but very much impliedly in the judgment, is the reality/fact of life that the adjudication would have to be on any "substantial question of law"; and further, a tax issue cannot be decided only on the basis of what the tax law provides but also having equal regard to, taking into consideration, one or more of the other inter-connected (-related) laws, in so far as the tax issue cannot be decided on a stand-alone-basis/sans those other laws.
Aside:
IN support of the view sought to be canvassed to the effect as to why same way as lawyers, also CAs not be
regarded as eligible to practice law, a
plea advanced is that the educational course for CAs includes in it curriculum also tax and other
laws,. Such a plea needs to be made a mention of only to be scoffed at, dismissed outright, and
ignored to be without substance.
Reasons, to demonstrate via. common sense analogies:
Reasons, to demonstrate via. common sense analogies:
A ) Diamond has its genes in, its creation is traceable to,
coal. Would you for that reason sanely call a diamond merchant as a coal
merchant or vice versa.
B) Even in school or college, the curriculum for study
includes, among others, subjects like Physics, Mathematics, Philosophy,
etc. For that reason, can, by any token of logic,
or with courage and conviction, anyone coming out of the school or college can call himself / profess to be a
Physicist , Mathematician, Philosopher,... Certainly , if one does, he is bound
to be taken to and housed in a lunatic asylum or prison.
A CA comparing self
and claiming to be equally equipped, or no less equipped than, as a lawyer, or vice versa, makes no
sense. Consider why then in ITAT, the
Bench is constituted by an Accountant member and a Judicial member.
Reminds of, -
Kettle calling the pot black; or mutual comparison, will be meaningless.
The two are different streams; having chosen one or both,
option is left to practice as an accountant or lawyer. Not BOTH. ICAI code of ethics to the contrary is highly questionable ( Ref. mail to the Secy., Bar Association of India, with no response as yet; also, post @LCI) - Cross Refer APPENDIX (bottommost)
In this context, attention requires to be drawn to / laser focused on some of the judicial (SC) pronouncements , which have been the subject matter of a critical analysis; which inter alia are these:
I. In re. Podar Cement *
Palkhivala's Text Book (latest, the Tenth EDition, by Arvind P Datar ) carries no analytical critique, hence no guidance of value, as normally expected.
On the SC judgment in Bangalore Club Case, re, the mutuality concept, the commentary may be found to provide reasoning why the view taken is incorrect.
The point requiring to be noted, with regret is, the representing counsels have not been helpful in assisting the court to reach a right or better conclusion on the issues adjudicated upon.
For a critique, cross refer >
Palkhivala's Text Book (latest, the Tenth EDition, by Arvind P Datar ) carries no analytical critique, hence no guidance of value, as normally expected.
On the SC judgment in Bangalore Club Case, re, the mutuality concept, the commentary may be found to provide reasoning why the view taken is incorrect.
The point requiring to be noted, with regret is, the representing counsels have not been helpful in assisting the court to reach a right or better conclusion on the issues adjudicated upon.
For a critique, cross refer >
II. In re. Nahalchand
BLOG > Realty O' Realities ! | Swamilook
III. In Re. Hill
Properties
itatonline.org/...
https://www.facebook.com/permalink.php?id=139777319443284...
SC Judgment in Hill Properties case - FORM seems
to prevailed over SUBSTANCE http://wp.me/p3ulce-fvt.
>>>>>>>
.....
Sec 13 (1), in a manner of speaking, is another instance of "impulsive legislation"; comparable and next not only to legislation of LLP and its incorporation in the main stream of company law....
Note: The justification sought to be made out/reasoning canvassed for CAs, OBVIOUSLY UNWITTINGLY, but simply by comparing the competitor- profession of "lawyers"/the related prevailing state of affairs in the field of law practice prima facie do not seem to make much sense , or carry even an iota of courage of conviction; much less, all the sense to support CAs' case. For, to say, own lack of competence or of dependability will have to be apprised by the yardstick of comparison with the other(s), certainly cannot be expected to be accepted , readily, and without offending one's own common sense. In any view, no need to add, the competence or otherwise of a 'lawyer' to represent a tax client before not only court but any other 'authority' would obviously and undoubtedly entail the same importance, besides repercussions or consequences to clientele, same as in case of CAs.
On a simple and straight forward look into the views favoring
CAs' stance taken and put across, as understood by one, seem to convey, by and large, the idea
that for enabling them to appear before the NTT, their competence, knowledge, or
practical experience in respect of all
other laws, except tax law, ought not to be a dissuading or discouraging factor; the only reason given is that, in any
case, those are subjects studied and examined in the course of qualifying for CA.
One has own grave and repulsive doubts as to why
and how any such argument or to that
effect, seemingly hollow or shallow, would be judicially acceptable (-ed), or could even be pressed for, with any chance for success, should the intended and ultimate objective of the
larger interests of the clientele were to be consciously kept in view or properly borne in mind; not
simply over sighted or bypassed. If viewed with a different stroke, any such plea or defense advanced to the foregoing effect could turn out to be suicidal so to say. For, after all a tax client goes to a professional for representing him before any authority, including in the lower hierarchy (even before an AO, CIT, ITAT ) only on the faith and expectation that his appointed representative would not fail him/ jeopardize his interests because of his deficient knowledge of law, poor expertise, and wanton ability to try and do full justice to the brief given. Though, of course, - as the saying goes, the goodness of the pudding is in the eating, a professional who suffers from elements of incapacity required to render proper and expected assistance /service, if not to begin with, in course of sometime, has to meet the waiting peril / prospect of being pushed into oblivion.
In pith and substance, the mutually opposing stance sought to be taken by lawyers on one side and CAs on the other,- having no regard or reference whatsoever to the potential interests and viewpoints/expectations of the tax payers, despite the subject primary issue having its vital implication / impact thereto/-on, are, in one's conviction, palpably misconceived. On that premise, even if were to be agitated and pursued afresh, therefore, the court, in ruling on the issue, cannot be expected to go ahead and decide de hors / in disregard of the said vital aspect.
Another patently misconceived but prima facie unacceptable to common sense, noted to have been advanced and canvassed by either side (Lawyers v CAs) is that simply because there are exceptions to the rule- the expected standard for professionals cannot be the right deciding criterion; that is amenable to be strongly countered on principally two possible grounds:
(1) In such matters, a random sampling alone can be the practical guide ; for, to carry out a person-to-person appraisal and assessment is, for obvious reasons, next to impossibility.
(2) In any view, the crux of the matter going to the very root of the controversy is, whether a professional, who , on own admission, has no knowledge of or expertise in law (meaning in the context the tax law so also other laws), adequate or otherwise, can righteously offer himself to be available for representation,- for that matter even for so called consultation, - without exposing self to the dire consequences - harmful, both from client's personal view point and the societal common view point.
(3) The other point of no less vital significance: Even if a professional has academically qualified both in accounting (as a CA) and law (lawyer), as warranted by the respective codes of ethics, he can choose and practice, and offer his services, only either as an accountant or a lawyer; and never both/mixed (a sort of 'turn coat').
In pith and substance, the mutually opposing stance sought to be taken by lawyers on one side and CAs on the other,- having no regard or reference whatsoever to the potential interests and viewpoints/expectations of the tax payers, despite the subject primary issue having its vital implication / impact thereto/-on, are, in one's conviction, palpably misconceived. On that premise, even if were to be agitated and pursued afresh, therefore, the court, in ruling on the issue, cannot be expected to go ahead and decide de hors / in disregard of the said vital aspect.
Another patently misconceived but prima facie unacceptable to common sense, noted to have been advanced and canvassed by either side (Lawyers v CAs) is that simply because there are exceptions to the rule- the expected standard for professionals cannot be the right deciding criterion; that is amenable to be strongly countered on principally two possible grounds:
(1) In such matters, a random sampling alone can be the practical guide ; for, to carry out a person-to-person appraisal and assessment is, for obvious reasons, next to impossibility.
(2) In any view, the crux of the matter going to the very root of the controversy is, whether a professional, who , on own admission, has no knowledge of or expertise in law (meaning in the context the tax law so also other laws), adequate or otherwise, can righteously offer himself to be available for representation,- for that matter even for so called consultation, - without exposing self to the dire consequences - harmful, both from client's personal view point and the societal common view point.
(3) The other point of no less vital significance: Even if a professional has academically qualified both in accounting (as a CA) and law (lawyer), as warranted by the respective codes of ethics, he can choose and practice, and offer his services, only either as an accountant or a lawyer; and never both/mixed (a sort of 'turn coat').
See other - phrases and sayings from Shakespeare
Not Unrelated THIS >
On Any matter,
including a tax issue, for a proper adjudication, court has to, one would
submit, laser-focused on and accord due weight to the fundamental criterion , -
'public interest' , in its altruistic sense, if any, That is not to say that
each and every view/comment put across / aired in public domain, even it be by
many,or urged by counsel of either party, deserves to be regarded as
"public opinion" and should influence the judicial mind in settling
the issue one way or the other, All the more reason why any view, if it is
convincingly misconceived or ill-founded, taken and canvassed by the Revenue ,
being an interested party , ought not to be given any more weight-age than what
is judiciously regarded as warranted.
Refer the article, -
Government as a client before courts of law | Business Line;
and my posted comment >
Government as a client before courts of law | Business Line
www.thehindubusinessline.com/.../government-as-a-client-before-courts-...
www.legalservicesindia.com/.../topic266-suraj-lamp-and-industries-p-vs-...
indiankanoon.org/doc/1565619/
< A Breath-taking, nay -stopping , of an obnoxious kind, Episode THIS
Misc.
Why Tax Practitioners Bill Required For India? - TaxGuru
Rider: Instantly comes to mind one such instance of
property-related / -connected tax issues, taken up to the highest level of
judiciary – the apex court for final adjudication; that is, in re. Podar Cement
Ltd.’s case.
To supplement (for profoundly the common good of one and
all)
Anyone professionally qualified e.g he be a lawyer or CA
(or cum CA), in one’s own experience ,exposure, apart from going by long
standing well considered conviction, firmly believes that in order to be
honestly expected to offer and render truthful service as a “tax practitioner”
ought to additionally have the following principal requisites:
Reasonable knowledge and
practical exposure to, besides purely the tax law, at least the particular
chosen area of practice. For instance, anyone choosing to practice in the realm
of tax issues inter- related or -connected to “property law” must have such
knowledge and experience, nay adequate specialization, in that area, in
general.
To be more precise, if the issue is essentially related or connected to a
particular kind of “property” e.g. flats or apartments governed by a special
law, then the knowledge, experience and exposure to the general property law
i.e TP Act and other allied enactments e.g. Registration Act, Stamp Act, and
the like, in isolation , might not prover adequate.
In short, it is not merely truly knowing or having
incisive familiarity with what the tax law says but also what the other law(s)
says must be known or be familiar with.
May be, the field reality being what it is, to take a
strictly puritanical view might seem impractical or turn out to be a
non-stater. But, even so, the point made is that, should, as suggested in the
write-up, there is need / urge for a separate enactment, then that should
necessarily keep in the backdrop, preferably in sharp focus, and suitably cover
the foregoing and similar angles in as prudent a manner as feasible.
Expectantly, the tax and property (in its all embracing
meaning) law Experts, at large in field practice, should be in a better position
to share own thoughts and ideas with the rest, with a view to improving upon
the presently obtaining state of affairs, as commonly observed.
To be more precise, if the issue is essentially related or connected to a particular kind of “property” e.g. flats or apartments governed by a special law, then the knowledge, experience and exposure to the general property law i.e TP Act and other allied enactments e.g. Registration Act, Stamp Act, and the like, in isolation , might not prover adequate.
< A sample dug-up (from archive)>
CA and Lawyer - rolled into one!
Look! there he goes.
Who is he?
He is - ‘so and so’
What is he?
A professional.
Which one?
A CA; also a lawyer.
Then he must be one having knowledge of both - 'Accounting' and 'Law'.!
Oh, yes; “TO THE BEST OF HIS KNOWLEDGE AND BELIEF”
I don’t get you!
You better go, get, and ask, him only.
<<<<<<<<<<<<<
In Winding up the narration herein AND in an attempt To Fit the Whole Of the Contents IN A NUT SHELL:
It is, as honestly perceived, not but common sense that,-
i) a professional (Lawyer or CA being no exception), is essentially a service provider;
ii) left to himself, may think or assert that he has a right to hard push client, depending, of course, how high or low given client is- in terms of human trait or intelligence,- to opt and readily accept his offer to be of service;
iii) try and convince that his is the best professional talent money could buy;
and so on, so forth.
It is equally of common sense, albeit with a different /opposite stroke that, but at the end of the day the service provider has only a Hobsons choice; as, after all, it is client and he alone who has to make up his mind, weighing all facets attendant realities/considerations, exercise his right to or not to accommodate the provider and accept his service.
As such, on the whole, the government 's role is provide the legal framework (the legal system )within the parameters of which the parties would have to work out their arrangement / service contract to act upon. The judiciary on its part , in the event of any dispute / litigation has to adjudicate on inter alia whether the parties have had to meet with the situation or came to be meted out any dire or otherwise avoidable consequence because of any lapse /deficiency in legislation or executive's default to...
As repeatedly pinpointed , and sufficiently stressed by legal luminaries cum renowned, widely acclaimed constitutional experts, hence prudently looked upon to be competent to express a useful view, so as to be of true guidance to one and all concerned, - including a legal legend par excellence , NAP (fondly called 'nani'):
> the clear boundary/demarcating lines marked for the 3 institutions under the Constitution namely, the Legislature, Executive, and Judiciary, in that order of functional importance and significance;
>> why unless and until each one of them properly function strictly in the manner expected of /as envisaged by the basic charter, and bearing in mind that whatever is done or omitted to be done must have the "public interest" as the touch stone;
>>> As Nani wrote:
- "The Constitution of India provides for a just balance between the Legislature, the executive and the judiciary. Each has a specific field to cover. The Courts are there to maintain the most fundamental equilibrium of our society. They are the agency of a sovereign people to enforce the laws; also to expound the Constitution and to ensure that its mandates are respected.The Supreme Court as well as the High Court of India is vested with the widest possible powers. But the courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, questions of opinion or belief or political wisdom. It is not the court’s role to be an extended arm of the executive.No Government is entitled to shift the responsibility, which the Constitution has squarely placed upon its shoulders, to any other agency of the State which was created for a wholly different purpose, Judicial pronouncements can never be a cover for inadequacy of Government." [Source : Article - Dragging the Supreme Court into the Political Arena - published in the Illustrated Weekly of India, January 1993]In that article, the cited criticism was leveled by the expert against the Government’s action in invoking the Apex Court’s jurisdiction under article 143 of the Constitution on the so-called infamous Babri Masjid issue. In his opinion, the issue involved no question of law or of fact. And, Court is not qualified by training or experience to deal with/decide other questions of—opinion or belief, history, mythology, or political expediency.What the jurist has pinpointed must be of equal relevance and application herein.
- In Union of India v. Azadi Bachao Andolan [2003] 263 ITR 706/ 132 Taxman 373, the observations of the Apex Court, albeit in a different context (that was an instance in which the court was called upon to adjudicate on the interpretation of a tax treaty And that was with particular reference to a report known as JPC Report, on the Stock Market Scam and matters relating thereto which was presented in the Lok Sabha and Rajya Sabha in 2002.The court’s cryptic observations eruditely made in its judicial wisdom may be noted to throw more light on the aspect of concern herein.
> Professions increasingly commercialized, with no impunity
> Most litigation (lawyer, and other professional stimulated
why court litigation ought to be shunned /eschewed as last resort of a scoundrel
Legislature, Executive and Judiciary - three distinct functionaries, with a line of demarcation, albeit invisible to a naked eye- of the respective jurisdiction required to be honored, any over-lapping or - stepping fundamentally unconstitutional- any attempt at violation of the supremacy
To laser focus (in own words): The SC has discussed at great length, and taking into consideration the arguments of both sides, handed down judiciously its erudite opinion, to the effect that, the concept of NTT as envisaged in the impugned enactment is patently misconceived; in that, despite the underlying, seemingly avowed, legislative object being 'tribunalization' , the intended new entity is neither a 'tribunal' nor a 'court' within the juridical meaning /four corners of the basic charter , hence ought not but to fail as ultra vires the mother of all laws.
The Constitution , so also any subordinate legislation as permissible within the four corners/ parameters thereunder , for purpose of interpretation of either,there is one, and only predominant governing principle ideally to be followed. All the 3 institutions set up , jointly and severally, have to be guided by the criterion that any act or omission , or inaction must have in sharp focus the object of "public interest" (in colloquial terms - "common good").
Easily said, than understood, imbibed or acted upon. For, the concept of 'public' or 'common' itself might not be amenable to any definitive meaning; so as to be precisely covered fully and fairly, much less comprehensively by any statutory definition. That explains why no attempt has been ever made to do so. As such, it is the judiciary, and judiciary alone, left to consider, judiciously interpret , and decide. In the instant case, that is what the apex court is undeniably noted to have done; in deciding the principal point of issue, and in emphatically ruling against the unacceptability of section 13 (1) , unwittingly incorporated in the impugned NTT Act, as well.
More thoughts on the foregoing aspect have been attempted to be set out in certain other related recent Blogs:
http://vswaminathan-swamilook.blogspot.in/2014/10/changing-concepts-and-endlessly-being.html
A cursory or summary reading of the foregoing,- provided /subject of course,to caring and minding to accord more and more thoughts on the desirable lines,- if looked at or through, with a soulful purpose , in a devoutly broad minded manner, there might be no escape for anyone , -whatsoever be his level of intelligence or intellect or ability to cogent and logical thinking, -from realizing that the ongoing debate , mostly with a narrow , in-box and self-centric outlook,calls for a change to a right direction , and an in-depth expert deliberation.
(Open to EDIT)
(may be contd.)
APPENDIX
EX. 1. itatonline
EX. 2 Ref. CA JOURNAL,
2013 NOVEMBER ISSUE, KYE, pg 694 *
* 24. Yes,
Council direction under Clause (7) of Part I of the First Schedule to the Act
prescribes that a Chartered Accountant in practice who is otherwise eligible
may practice as Advocate subject to the permission of the Bar Council but in
such cases, he should not use designation 'Chartered Accountant' in respect of
the matters involving the practice as an Advocate. In respect of other matters he
should use the designation 'Chartered Accountant' but he should not use the
designation 'Chartered Accountant' and 'Advocate' simultaneously
EX.3
8 December 2013
Subject:
The Secretary
Bar Council of India
Sir
Regret I have yet to receive a
reply from you clarifying the point of doubt, which is of commonly vital
concern, to every professional in practice.
I append below*, a couple of
ref./link. Kindly look up, particularly to the comments on the referred article
@itatonline. That should enable you to appreciate that though it is of every
relevance to any practising CA or Advocate, there is enough confusion all
around. And hence an official clarification from you should be of guidance to
the professionals. You may, if you so prefer, kindly care and put up your
clarification as solicited on the website of itatonline.
No need to add and repeat that
this is a matter of common interest and concern; and hence your early response
should go a long way in putting an end to the ongoing controversy for too long
to impact not only the professionals but also the larger public interest as
well.
.....
Subject:
Rejoinder (meant to be taken as COMPREHENSIVE AND FINAL):
To whomsoever it may concern
Own further comment in any form, on my own comment which was entirely confined- if read carefully, – to a selected simple point of ongoing controversy,was not intended to be, even by erring on a wrong side, by anyone, as a comment on the right or wrong of the ‘judgment’ as a whole.i would be wrong if i do so. For,that is a matter of the topmost overwhelming intricacies galore. and ought to be valiantly fought out by either party (including the ones with own interests who, later, on intervention, came to be imp-leaded), if so decided to the FINISH (ING Line).
Me, neither being a lawyer or CA or any other professional in active practice, much less one who, even secretly or remotely, believe to be a law or accounting, or any other expert,- more so , in any case,not being a judge to proffer any empathetic or sacrosanct Answer,- ‘Yes’ or ‘No'; simplistically, going by the dominant dictates of PRUDENCE.
In case, by any chance, the idea in the minds of the rest is to know what others have to say, on the merits or otherwise of the view taken on the principal point of issue itself, though not obligated, may, as a matter of common courtesy, recommend to look up also the other related websites / financial papers,adequately covering the self-same topic.
PS: Mr Sandeep, my personal request/sincere suggestion to you, in own interests, is to try and ensure, through proper moderation, that, your website is used as a forum for anybody to comment on the subject matter or any aspect incidental thereto, on the line of each one’s individual / independent line of thinking; not to be converted into a forum for ‘debate’ or ‘arguments’, heated or emotional and the like. Especially on any aspect on which there could always be an answer, – YES or NO; AND NOT / NEVER A One-sided,- “Yes” OR “NO”; unlike before a court, the only constitutional authority empowered to ‘adjudicate’.
Again, incidentally, kindly note, the need for my such a rejoinder would not have arisen or been realized by me, but for the fact that i per chance / sheer accident happened to have a re -look herein, plainly wanting to know/ get a feedback as to what the other readers,presumably enlightened in their own way, have had to say.
Time for me to say to self, there being no real purpose envisaged,more so for the common good,- Adieu.
To whomsoever it may concern
Own further comment in any form, on my own comment which was entirely confined- if read carefully, – to a selected simple point of ongoing controversy,was not intended to be, even by erring on a wrong side, by anyone, as a comment on the right or wrong of the ‘judgment’ as a whole.i would be wrong if i do so. For,that is a matter of the topmost overwhelming intricacies galore. and ought to be valiantly fought out by either party (including the ones with own interests who, later, on intervention, came to be imp-leaded), if so decided to the FINISH (ING Line).
Me, neither being a lawyer or CA or any other professional in active practice, much less one who, even secretly or remotely, believe to be a law or accounting, or any other expert,- more so , in any case,not being a judge to proffer any empathetic or sacrosanct Answer,- ‘Yes’ or ‘No'; simplistically, going by the dominant dictates of PRUDENCE.
In case, by any chance, the idea in the minds of the rest is to know what others have to say, on the merits or otherwise of the view taken on the principal point of issue itself, though not obligated, may, as a matter of common courtesy, recommend to look up also the other related websites / financial papers,adequately covering the self-same topic.
PS: Mr Sandeep, my personal request/sincere suggestion to you, in own interests, is to try and ensure, through proper moderation, that, your website is used as a forum for anybody to comment on the subject matter or any aspect incidental thereto, on the line of each one’s individual / independent line of thinking; not to be converted into a forum for ‘debate’ or ‘arguments’, heated or emotional and the like. Especially on any aspect on which there could always be an answer, – YES or NO; AND NOT / NEVER A One-sided,- “Yes” OR “NO”; unlike before a court, the only constitutional authority empowered to ‘adjudicate’.
Again, incidentally, kindly note, the need for my such a rejoinder would not have arisen or been realized by me, but for the fact that i per chance / sheer accident happened to have a re -look herein, plainly wanting to know/ get a feedback as to what the other readers,presumably enlightened in their own way, have had to say.
Time for me to say to self, there being no real purpose envisaged,more so for the common good,- Adieu.
Read full details regardingGoods and services tax
ReplyDelete