L.M. Mahurkar
Vs. The Bar Council of Maharashtra & Anr [1996] INSC 507 (8 April 1996)
Sen,
S.C. (J) Sen, S.C. (J) Verma, Jagdish Saran (J) Majmudar S.B. (J) Sen, J.
CITATION:
1996 AIR 1602 JT 1996 (4) 224 1996 SCALE (3)399
ACT:
HEAD NOTE:
The
appellant claims that he was a Sales Tax Practitioner in 1949 when the Central Provinces and Berar Sales Tax Act, 1947 was
in force in the State of Madhya
Pradesh and,
thereafter he continued his practice in sales tax matters at Nagpur under the provisions of the Bombay
Sales Tax Act, 1959. The appellant claimed that when the Advocates Act, 1961
came into force, he was entitled to be enrolled as an Advocate by the Bar
Council of Maharashtra.
It has
been contended by Mr. Ganpule appearing on behalf of the appellant, that the
appellant was entitled to be enrolled as an Advocate by virtue of the
provisions of sub-section (31(aa) of Section 24 of the Advocates Act, 1961.
There is no dispute that he does not have a degree in law or for that matter
any degree, but he is a person who was entitled to practise the profession of
law before Ist December, 1961 by virtue of the provisions of the Bombay Sales
Tax Act, 1959. Therefore, his could not be denied.
We
shall have to examine whether the appellant's case comes within the provisions
of sub-section (3)(aa) of Section 24 of the Advocates Act to justify the claim
made by Mr. Ganpule. Sub-section (1) of Section 24 lays down the qualifications
which must be acquired by a person who wants to be admitted as an advocate on a
State roll. Sub-section (2) provides that notwithstanding anything contained in
sub- section (1) a vakil or a pleader who is a law graduate may be admitted as
an advocate under certain circumstances.
Subsection
(3) deals with cases of persons who do not fall either under sub-section (1) or
(2). Sub-section (3) of Section 24 is as under:
"24(3).
Notwithstanding anything contained in sub-section (1), a person who (a) has,
for at least three years, been vakil or a pleader or a mukhtar, or was entitled
at any time to be enrolled under any law as an advocate of a High Court
(including a High Court or a former Part B State) or of a Court of Judicial
Commissioner in any Union territory; or (aa) before the 1st day of December,
1961, was entitled otherwise than as an advocate to practise the profession of
law (whether by way of pleading or acting or both) by virtue of the provisions
of any law, or who would have been so entitled had he not been in said date; or
(b) . . . . . . . . .
(c) .
. . . . . . . .
Since
the appellant's claim is confined to clause (aa) of sub-section (3), it will
have to be examined whether he was entitled 'to practise the profession of law'
by virtue of the provisions of any law before 1st day of December, 1961. The appellant'S
case that he was appearing in sales tax matters before sales tax authorities
under Bombay Sales Tax Act has not been disputed. But that does not mean he was
practising the profession of law. Section 71 of the Bombay Sales Tax Act, 1959
empowers not only legal practioners but many other persons to appear before a
sales tax authority.
Section
71 provides:
"71.
Appearance before any authority in proceedings:(1) Any person, who is entitled
or required to attend before any authority in connection with any proceeding
under this Act, may attend- (a) by a relative or a person regularly employed by
him or (b) by legal practitioner or Chartered Accountant or Cost Accountant,
who is not disqualified by or under sub- section (2), or (c) by a sales tax
practitioner who possesses the prescribed qualifications and is entered in the
list, which the Commissioner shall maintain in that behalf, and who is not
disqualified by or under sub- section (2), if such relative, person employed,
legal practitioner, Chartered Accountant, Cost Accountant or sales tax
practitioner is authorized by such person in the prescribed formed and such
authorization may include the authority to act on behalf of such person in such
proceedings.
(2)
The Commissioner may by order in writing and for reasons to he recorded therein
disqualify for such period as is stated in the order from attending before any
such authority, any legal practitioner, Chartered Accountant, Cost Accountant
or sales tax practitioner,-
(i) who
has been removed or dismissed from Government service, or
(ii)
who being a legal practitioner Chartered Accountant or Cost is found guilty of
misconduct in connection with any proceedings under this Act by an authority
empowered to take disciplinary action against the member of the profession to
which he belongs, or
(iii)who
being a sales tax practitioner is found guilty of such misconduct by the
Commissioner."
It
clearly appears that a distinction has been drawn between a legal practitioner
and a sales tax practitioner in Section 71. Both may appear before an authority
in connection with sale-s tax cases. That will not turn a sales tax
practitioner into a legal practitioner. Even a relative or an employee of an assessee
may appear on his behalf before a sales tax authority. He does not require to
have any special qualification for doing that If an employee appears regularly
for his employer in connection with sales tax cases of his employer before a
sales tax authority, he cannot be treated to be a legal practitioner or
entitled otherwise to practise the profession of law by virtue of Section 71 of
the Bombay Sales Tax Act.
The
second category of persons, who are entitled to appear before sales tax
authorities under clause (b) of Section 71, are professionally qualified
persons. A legal practitioner or a chartered accountant or a cost accountant
may appear before a sales tax authority on behalf of his client. Such
appearance by a lawyer or an accountant will be in the course of carrying on
his profession of law or accountancy, as the case may be. It cannot be said that
an accountant carries on the profession of law when he appears before the sales
tax authority, nor can it be said that a lawyer carries on the profession of an
accountant when he appears before a sales tax authority. The third category, to
which the appellant claims to belong, is the category of sales tax
practitioners, who possess the prescribed qualifications. Assuming that the
appellant} who is stated to be only a Matriculate, has acquired the prescribed
qualifications and has been included in the list of persons qualified to appear
before the sales tax authorities, he cannot be treated as a person entitled to practise
either the profession of law or the profession of accountancy. A large number
of persons have been permitted to appear before sales tax authorities on behalf
of the dealers. The list includes an employee a relative, a sales tax
practitioner and also professionally qualified people like lawyers and
accountants. The right to appear before a sales tax authority is not confined
to lawyers only. We are unable to uphold the contention that merely because the
appellant has been permitted to appear before the sales tax authority he falls
within the category of persons entitled to practise the profession of law by
virtue of the provisions of the Bombay Sales Tax Act Moreover, appearance
before the sales tax authority may only be for the purpose of filing a return
and producing documents in support of the return. A relative or an employee or
an accountant or a sales tax practitioner can be asked to do this job by an assessee
for and on his behalf.
That
does not mean that any one of the aforesaid Persons is practising the
profession of law when he appears before the statutory authority and produces
the accounts. He may even be called upon to explain the accounts or justify the
entries made in the accounts books. There may be problems only of book-keeping
and accountancy and nothing of law in such proceedings. Therefore, it cannot be
inferred straightaway that because the sales tax practitioner has been given a
right to appear before a statutory authority, he is practising the profession
of law.
There
is also another aspect of the matter. The exact qualification of the appellant
and the nature of his work has not been set out in the petition under Article 226
of the Constitution before the Nagpur Bench of the Bombay High Court. It was
stated by Mr. Ganpule that the petitioner is a Matriculate. The Secretary, Bar
Council of Maharashtra, by a letter dated 27th December, 1978 called upon the
appellant to produce the application made by him to the Sales Tax Officer
initially for registration as a sales tax practitioner. The appellant was also
asked to give particulars of any examination of accountancy which he may have
passed. The appellant in reply in his letter dated 3rd January, 1979 stated:
"I
have to state that I did not pass any accountancy examination since that was
not necessary to qualify for a sales Tax Practitioner under section II-B(2) of
the C.P. & Berar Sales Tax Act, 1947. Similarly, under that Act, there was neither
any provision or any requirement for formal enrollment or registration as Sales
Tax Practitioner, but the then Commissioner of Sales Tax did not maintain a
list of such Sales Tax Practitioner. Since I was such a Sales Tax Practitioner
under that Act, I practised right upto 31st December, 1959, when that Act was
repealed on 1.1.1960 but the Bombay Sales Tax Act 1960, and by virtue of the
Savings Section 77(1)(c) of the Repealing Act, I was entitled to practice under
the Bombay S.T. Act, 1960 and get myself enrolled as Sales Tax Practitioner
under Section 71 read with Rule 66(2) of that Act." The question asked by
the Secretary, Bar Council of Maharashtra, is also important for the purpose of
this case.
The
sales tax practitioner is required to be conversant with accountancy principles
and practice. He may not be a qualified chartered accountant or a cost
accountant, but he must have some familiarity with accountancy practice. This
is apparent from the requisite qualification of a sales tax practitioner under
Rule 66 of the Bombay Sales Tax Rules:
"66.
Qualification of a Sales Tax practitioner: A Sales Tax Practitioner:-(1) A
sales Tax Practitioner shall be eligible for having his name entered in the
list of sales tax practitioners maintained under Section 71, if-
(a) he
has passed an accountancy examination, recognized by the Central Board of
Revenue constituted under the Central Board of Revenue Act, 1924 (IV of 1924),
for the purpose of clause (v) of subsection (2) of Section 288 of the Income-tax
Act, 1961 (43 of 1961), or
(b) he
has acquired such educational qualifications as are prescribed by the Central
Board of Revenue constituted under the Central Board of Revenue Act, 1924 (IV
of 1924) for the purpose of clause (vi) of sub-section (2) of Section 288 of
the Income-tax Act, 1961 (43 of 1961), under Rule 51 of the Income-tax Rules,
1961, and
(c)
(Deleted by G.N. of 4.12.1962).
(d) he
was formerly an employee of the Sales Tax Department, he is in the opinion of
the Commissioner a fit and proper person to attend before any Sales Tax
authority as a Sales Tax practitioner:"
The
requirements of Rule 66 go to show that sales tax practitioner, who has not got
a degree in law or is not a qualified chartered or cost accountant, will have
to acquire some knowledge of accountancy. Even Section 288 of the Income Tax
Act and the Rules framed thereunder, lays down that an Authorized
Representative who is not a legal practitioner entitled to practise in any
civil court in India or a Chartered Accountant or a person qualified to be an
auditor of a company may be allowed to appear before an Income Tax Authority,
if he has passed any of the accountancy examinations recognized by the Central
Board of Revenue or has acquired a degree in commerce from a recognized
University. These rules go to show that apart from lawyers and chartered or
cost accountants, other persons are allowed to practise in the Sales Tax
Department as Sales tax practitioner provided they have acquired some knowledge
of accountancy. They will have to pass one of the many recognized accountancy
courses for this purpose. This goes to show that the sales tax practitioner
does not carry on the profession of law when he appears before a Sales Tax
Officer. His practice is more in the nature of that of an accountant.
Therefore, we are unable to uphold the contention that merely because the
appellant was allowed to practise as a sales tax practitioner, he is entitled
to be enrolled as an advocate by virtue of the provisions of clause (aa) of
sub-section (3) of Section 24 of the Act.
It may
also be pointed out that the construction suggested by the appellant will lead
to anomaly and must be avoided. After passing of the Advocates Act, only one
class of persons is entitled to practise the profession of law, namely,
advocates (Section 29). If the phrase 'practise the profession of law' is
equated to appearance before the sales tax authority, in that event, a
chartered accountant or a cost accountant or even a relative or an employee of
an assessee will not be entitled to appear before a sales tax authority after
the Advocates Act came into force. Not only that, if the contention of the
appellant is accepted, after the appointed date the sales tax practitioner who
does not have a degree in law will not be entitled to be enrolled as an
advocate, will not be able to practise the profession of law and consequently
will not be able to appear before any Sales tax authority notwithstanding the
provisions of Section 71 of the Bombay Sales Tax Act.
We are
of the view that there is nothing in the provisions of the Bombay Sales Tax Act
or the rules framed thereunder to suggest that the right of appearance before a
sales tax authority amounts to entitlement to practise the profession of law as
contemplated by clause (aa) of Sub- section (3) of Section 24 of the Advocates
Act.
Therefore,
this appeal fails and is dismissed. There will be no order as to costs.
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