TMI Blog2018 (11) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... luding one being a sales tax practitioner or a legal practitioner. The annexures to the show cause notice clearly suggest that the petitioner appeared before such authorities in the capacity of a legal practitioner and not as a sales tax practitioner. Sub-section 81(2) of the Act provides that whenever 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. (emphasis supplied) Admittedly, the petitioner is a legal practitioner and therefore the domain to conduct any investigation or issue a show cause notice would be that of the State Bar Council. Section 35 of the Advocates Act 1961 clearly provides that it is the State Bar Council which has the power to take disciplinary proceedings for any professional and/or any other misconduct against an advocate - It is therefore evident that a sales tax practitioner and a legal practitioner are distinct individual professionals and it is in this context that a segregation is made in Section 81(1) of the Act auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stood superseded and he thereafter was attending the proceedings under the GVAT Act as a legal practitioner as envisaged under clause (b) of sub-section (1) of section 81 of the GVAT Act and not as a sales tax practitioner as envisaged under clause (c) of sub-section (1) of section 81 of the GVAT Act. It was submitted that under sub-section (2) of section 81 of the GVAT Act, the Commissioner is empowered to disqualify a legal practitioner who is found guilty of misconduct in connection with any proceedings under the Act by an authority empowered to take disciplinary action against the members of the profession to which he belongs. It was submitted that therefore, it is the Bar Council of Gujarat which would be empowered to take disciplinary action against the petitioner and not the Commissioner, inasmuch as, the petitioner no longer continues to be a sales tax practitioner as envisaged under clause (c) of subsection (1) of section 81 of the GVAT Act. It was submitted that therefore, the impugned notice issued by the Commissioner is without authority of law. 2. Having regard to the submissions advanced by the learned counsel for the petitioner, Issue Notice returnable on 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified authority who carries out such audit can be a Chartered Accountant or a legal practitioner or a sales tax practitioner. In other words, the petitioner carries out his professional duty under the Act as a legal practitioner in order to facilitate a dealer based on the feedback that he gets from such dealer. In discharge of his professional duties, certain dealers who are dealing in the business of trading of cigarettes, approached the petitioner for obtaining registrations under the provisions of the Act, filing periodic returns, and for appearing before the authorities in refund proceedings and to get their accounts audited. In discharge of his professional obligation, the petitioner worked and appeared before various authorities. 2.2 The subject matter of the present show cause notice pertains to a case where the registered dealers purchased duty paid cigarettes from distributors of ITC Ltd. and Godfrey Philips Ltd. located in the State of Gujarat and sold them outside Gujarat in the course of interstate 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- ( a) Who has been removed or dismissed from Government service; or ( b) 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 profession to which he belongs; or ( c) Who being a sales tax practitioner is found guilty of such misconduct by the Commissioner. ( 3) No order of disqualification shall be made in respect of any particular person unless he has been given a reasonable opportunity of being heard. ( 4) Any person against whom an order of disqualification is made under this section may, within one month of the date of communication of such order, appeal to the State Government and the State Government may pass such order in appeal as it may think fit. ( 5) The order of the Commissioner shall not take effect until one month of the making thereof or when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83, his enrollment as a Sales Tax Practitioner is not cancelled and therefore the Commissioner is entitled to take action against the petitioner. 4.1 Mr. Dave further argued that the petition is premature inasmuch as it challenges the show-cause notice and therefore unless and until a reply is filed and action is taken pursuant to the notice ,this Court, in exercise of powers under Article 226 of the Constitution of India ought not to have set aside the same. 5. Having considered the submissions of learned advocates appearing on behalf of the respective parties, reading of Section 81 of the Act suggests that a person who is entitled or required to attend before any authority in connection with any proceedings under the Act can be of three categories namely (I) a person can be authorised in writing to appear before such authority (II) a Legal Practitioner or a Chartered Accountant or a Cost Accountant or (III) a Sales Tax Practitioner who possesses the prescribed qualification entered in the list. 6. From the facts on hand, what is evident is that on getting a degree in Bachelor of Commerce, the petitioner applied for appearing as a tax practitioner in accordance with Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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