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2008 (3) TMI 641 - HC - VAT and Sales TaxConstitutional validity of section 61(1) and the Explanation thereto, of the Maharashtra Value Added Tax Act, 2002 challenged Held that:- The challenge based on article 14 is to be rejected as Chartered accountants by reason of their training have special aptitude in the matter of audit. An income-tax practitioner does not have the same expertise as the chartered accountants in the matter of accounts. The argument therefore, that the effect of such a provision will be to exclude all other categories of authorised representatives except the chartered accountants from carrying on their profession is liable to be rejected, as they constitute two distinct class having a nexus with the object of the provisions, which is prevention of evasion of tax dues. The contention that such a provision brings in an oppressive restriction is also liable to be rejected as auditing accounts is a specialised job. Legal practitioners and chartered accountants are equal for the purpose of representation of assessees before assessing authority but they are not equals for the purpose of compulsory audit. In the light of this object, chartered accountants and others cannot be said to be similarly situate. The qualifications and eligibility to be enrolled as income-tax practitioners are entirely different from that of chartered accountants from the point of view Of auditing. Merely because, apart from dealers whose turnover is more than 40 lakhs, dealers dealing in liquor trade have also to get their accounts audited does not make the provision arbitrary. Such dealers are a class by themselves as they are carrying on a trade which is res extra commercium. Section 29 of the Advocates Act till date has not been brought into force. Apart from that one fails to understand the stand of the Bar Council after the decision of the Supreme Court in T.D. Venkata Rao [1998 (12) TMI 6 - SUPREME Court] wherein the Supreme Court has accepted the fact that chartered accountants by the reason of their training have special aptitude in the matter of audit. The act of maintaining accounts is neither pleading, practice nor acting. For the reasons already discussed, we find that the challenge to the constitutional validity of the legislation under articles 14 and 19 at the instance of the Bar Council will also have to be rejected. Under section 82, there are a class of persons from whom a dealer can obtain services for being represented before the authorities under the Act. Under section 61, he is bound to select one of the class of accountants also. This is for a category of dealers whose turnover is more than 40 lakhs. The amount of fee which has to be paid is the amount to be decided between the dealer and that person, whom he selects from amongst the accountants that are available. This cannot be said to amount to compulsory levy amounting to tax. That being the case, the challenge under article 265 must also fail. Similarly, the question of article 301 being attracted, does not arise. The challenge on that count also has to be rejected as the right claimed by the petitioner or their members or by the dealer is that advocate and sales tax practitioner cannot carry out audit in terms of section 61 in the State of Maharashtra. The enactment is pursuant to the power of the State legislation to make law within its competence. This does not attract article 301. Appeal dismissed.
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