A SALES TAX PRACTIONER AND A LEGAL PRACTITIONER ARE DISTINCT INDIVIDUAL PROFESSIONALS

[Mr. M. GOVINDARAJAN]

Section 2(i) of the Advocates Act, 1961 defines the expression ‘legal practitioner’ as an Advocate or vakil or any High Court or a pleader, mukhtar or a revenue agent.  Section 2(a) of the said Act defines the term ‘Advocate’ as an advocate entered in any roll under the provisions of the Advocates Act.  Bar Council is the authority for Advocates to enroll themselves to practice as an Advocate and the Bar Council is the competent authority to initiate disciplinary actions against the erred Advocate.

A Sales Tax practitioner is a qualified person under the respective State Value Added Service Tax Law permitted to practice before the Authorities.

Section 81(1) of the Gujarat Value Added Tax Act, 2003 provides that any person, who is entitled or required to attend before any authority in connection with any proceedings under this Act, may attend-

• by  a person authorized by him in writing in this behalf, being a relative or a person regularly employed by him; or

• by a legal practitioner or Chartered Accountant or Cost Accountant who is not disqualified by or under sub-section (2); or

• 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).

Section 81(2) provides that the Commissioner may, by an order in writing and for reasons to be 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-

• who has been removed or dismissed from Government service; or
• who being a legal practitioner or Chartered Accountant or Cost Accountant is found guilty of misconduct in connection with any proceedings under this Act by an authority empowered to take disciplinary action against the members of the professional to which he belongs; or
• who being a sales tax practitioner is found guilty of such misconduct by the Commissioner.

No order of disqualification shall be made in respect of any particular person unless he has been given a reasonable opportunity of being heard.  Any person against who an order of disqualification is made under Section 81 may, within one month of the date of communication of such order, appeal to the State Government and the State Government may pass order in appeal as it may think fit.

The order of the Commissioner shall not take effect until one month o the making thereof or when an appeal is preferred, the appeal is decided. 

The Commissioner may, at any time suo motu or on an application made to him in this behalf, revoke any order made against any person and thereupon such person shall cease to be disqualified.

In ‘Pravin Natvarlal Modh v. State of Gujarat’ – 2018 (11) TMI 450 - GUJARAT HIGH COURT  the petitioner applied for appearing as a tax practitioner in accordance with Rule 59 of the Gujarat Value Added Tax Rules, 2006.  The petitioner was granted such certified by the authorities on 02.07.1977.  The petitioner acquired a professional qualification under the Advocates Act, 1961 as a legal practitioner and enrolled himself as an advocate with the Bar Council of Gujarat and got a certificate to practice as an Advocate on 10.08.1983.

The petitioner carried out various professional obligations such as-

• attesting the photographs of the clients which are affixed in Form 101 and assist the dealer in obtaining a registration certificate;
• assists the dealer in preparing e-returns;
• help the dealers in getting the refund of unutilized input tax credit by appearing before the authorities with documents provided by the dealer;
• to get the accounts of the dealers audited.

Some registered dealers purchased duty paid cigarettes from distributors of ITC Limited and Godfrey Philips Limited located in the State of Gujarat and sold them outside Gujarat in the course of inter-State sale.  As the amount of input tax credit on purchased goods was lying unutilized, the petitioner’s clients approached the petitioner for filing refund claims of n unutilized amount of input tax credit shown in balance in e-returns.  The petitioner applied for refund by filing an online application.  An opportunity was granted where the petitioner appeared for the clients on their behalf and after satisfaction the Department provisionally sanctioned the refund claims.

The Department had doubts regarding the veracity of the transactions inasmuch as they were under the impression that the dealers may not have sold the goods in the course of inter-State sale, investigation was initiated against the dealers.  The Department recorded the statements of the dealers. 

The Department issued a show cause notice to the petitioner alleging that while the petitioner was enrolled as a Sales Tax Practitioner committed several irregularities and connived in defrauding the government revenue.  In respect of several dealers, when the petitioner was representing them as a legal practitioner, he had connived with the proprietors and had therefore committed misconduct which entailed disqualification under section 81 of the Act.  The petitioner was directed to show cause as to why he should not be disqualified from practicing as per the provisions of section 81(2) of the Act.

The petitioner filed the present petition with the prayer to quash the show cause notice which has been issued without the authority.  The petitioner submitted the following before the High Court-

• Once having been enrolled with the Bar Council of Gujarat, the certificate issued by the Commissioner registering him as a Sales Tax Practitioner stood superseded.
• Since on acquiring a certificate of enrolment with the Bar Council of Gujarat, he was attending the proceedings under the VAT Act as a legal practitioner as envisaged under section 81(1)(b) of the Act.
• Section 81(2) provides that the Commissioner may, by an order in writing and for reasons to be 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,-

• who being a legal practitioner or Chartered Accountant or Cost Accountant is found guilty of misconduct in connection with any proceedings under this Act by an authority empowered to take disciplinary action against the members of the professional to which he belongs; or
• who being a sales tax practitioner is found guilty of such misconduct by the Commissioner.

• It is only the Bar Council of Gujarat which would have taken disciplinary action and not the Commissioner.
• The show cause notice was without any authority and without any jurisdiction and therefore liable to be quashed.

The Department contended that though the petitioner acquired a licence to practice from the Bar Council of Gujarat on 10.08.1983, his enrollment as a Sales Tax Practitioner is not cancelled and therefore the Commissioner is entitled to take action against the petitioner.

The High Court perused the various returns filed by the dealers which form part of the annexure to the show cause notice suggest that the petitioner had signed such returns showing his enrollment membership number G/595/1983 which would clearly suggest that he was rendering such service as a legal practitioner.   The High Court analyzed the provisions of Advocates Act.  The High Court observed that the reading of section 2(a) and section 2(i) of the Advocates Act together would indicate that the term legal practitioner would include an Advocate.  Section 81(2) provides that wherever a legal practitioner or any other professional namely a Chartered Accountant or a Cost Accountant is found guilty of misconduct with any proceeding under the VAT Act, the authority empowered to take disciplinary action is the authority to which the members of the profession belong to.  Admittedly the petitioner is a legal practitioner and therefore the domain to conduct any investigation or issue a show cause notice would that of the State Bar Council.

The High Court held that a sales tax practitioner and a legal practitioner are distinct individual professionals and it is in this context that segregation is made in Section 81(1) of the Act authorizing each individual to appear in his respective capacity.  Once the petitioner acquired the certificate of legal practitioner by obtaining a licence, such a qualification supersedes the certificate of sales tax practitioner and cloak of being a legal practitioner takes over and the petitioner loses his identity of a sales tax practitioner.

The High Court accordingly quashed the show cause notice issued by the Commissioner to the petitioner.