SILF president and Bhasin & Co managing partner Lalit Bhasin said: “My view is that the interim order is absolutely correct. What we had been saying is that fly-in and fly-out should be permitted and the SC has allowed that, upheld that part of the judgment.”
“But the court did not allow the people to come for arbitration proceedings and all,” he added. “I think that should be permissible. Supposing Indian lawyers have to appear in London before LCIA [London Court of International Arbitration] or SIAC [Singapore International Arbitration Centre] and all that.”
“I think we should give the same treatment to the foreign lawyers, when they come [to India to do arbitrations].”
The apex court passed an interim order last week that foreign law firms should abide by the Indian Advocates Act if in the country advising in litigious and non-litigious matters, although in line with the Madras high court’s earlier decision in the Balaji case, foreign lawyers should be allowed to fly into India on a temporary basis to advise clients.
“The BCI has a different view,” conceded Bhasin but declined to comment further when asked about why the the BCI had appealed the fly-in-fly-out part of the Madras high court judgment or whether it had consulted with SILF before deciding to appeal.
SILF also resolved that many chartered accountancy firms were providing legal advice to Indian clients in violation of the Advocates Act and the Supreme Court order, reported the Hindustan Times.
“We would first take up the issue with the [Institute of Chartered Accountants] ICAI and the ministry of corporate affairs,” Bhasin told the newspaper. “In case the accounting firms including the foreign ones continue to provide legal advice to their clients, the government too must intervene. But if it does not solve the problem, we are ready to take up the issue in court.”
SILF general secretary and Hammurabi & Solomon managing partner Manoj Kumar told the Hindustan Times: “Advocates Act, 1961 only allows persons licensed by the bar councils to practice the profession of law in India, which management and accounting firms including the 'big four' do not comply with. The order of the Supreme Court therefore has to be implemented in letter and spirit by restraining such firms from practicing the profession of law.”
In February 2012 Legally India highlighted the discrepancy between the legal position and the work of chartered accountancy firms
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If as a qualified and experienced CA I am not allowed to attest/audit without a COP why should a CA, especially one working with the Big 4 accounting firms be allowed to practice and advise on tax law,FEMA law, Capital markets law draft deeds , do conveyancing as well as appear in several fora ( except the courts)
The real danger lies not from foreign lawyers but from CAs who practice law
However, CA firms eat into the revenue of Indian firms so it is in the interest of lawyers to kick CA firms out.
However, there is nothing wrong in this approach. Preservation of self-interest is okay, especially when the law does not allow competitors like CA firms to advice on law.
HOWEVER, Big 4 is getting involved even in disputes and transactional advisory work. If they hire lawyers for in-house work that should be fine, but they cannot hire lawyers and provide legal advice as multidisciplinary partnership of lawyers and CAs is not allowed. The interpretation of our courts on the foreign firm issue also suggests that they would most likely take a similar view if Big 4 is challenged in court.
Indian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Therefore, authorised representative clause not required in any Indian taxation statute. Bar Council of India Vs A.K.Balaji [SLP(Civil)No(s)17150-17154/2012] Dt.4.7.2012 (SC) & A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) it was clearly held by Hon’ble Supreme Court & Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious & non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act. The constitution bench of Supreme Court of India in National Tax Tribunal case of Madras Bar Association Vs Union of India bearing No.150 of 2006 Dt.25.09.2014, it was ultimately held that Chartered Accountant to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. The verdict of Supreme Court is the declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution & contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution. Hence, Advocates alone are entitled to Practice, Plead and Act before the revenue authorities. On date, authorized representative clause under all Indian taxation statute has been subject to review of apex court and hence require deletion. Other than Advocates should appear before tax authorities under CPC/Evidence Act, against summons issued. If such appearance clause still retained in statute book of Indian taxation laws, situation may arise that order of assessing authority passed against the representation of other than Advocates become in-fructuous, bad in law, null & void. Further, such orders cannot be enforced/appealed. Power of attorney (Vakalatnama) to practice law can only be given to Advocates.
REQUIRED ACTION OF MINISTRY OF FINANCE IN CONSULTATION WITH MINISTRY OF LAW & JUSTICE, GOVT. OF INDIA, IN VIEW OF ABOVE COURT VERDICTS.
Learned officials in Ministry of Finance well aware that all procedure laid down in CPC/Evidence Act followed in assessment procedure in all Indian taxation laws. In view of above court verdicts, following amendment to taxation statute & procedural changes should be brought, in consultation with Ministry of Law & Justice. Govt. of India. Authorised representative clause require deletion. In response to notice issued in Indian taxation statute, assessee should appear in person or only through Tax Advocate duly authorising him by way of vakalatnama. In order to seek production of records in support of return filed, summons should be issued to enable other than Advocates to appear on behalf of the assesses
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