PETITIONER: L.M. MAHURKAR Vs. RESPONDENT: THE BAR COUNCIL OF MAHARASHTRA AND ANOTHER DATE OF JUDGMENT: 08/04/1996 BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) VERMA, JAGDISH SARAN (J) MAJMUDAR S.B. (J) CITATION: 1996 AIR 1602 JT 1996 (4) 224 1996 SCALE (3)399 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
SEN, J.
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.