Advocates
only can appear before Income Tax Authorities
In a very interesting move which may not be a good news
for practicing CA, CS, CMA etc. who are engaged in practice in the area of Law
and taxation, Rajasthan Tax Bar Association have filed a petition
before Chief Commissioner of Income Tax (CCIT), Rajasthan and urged
him to not to allow any one else then advocates Registered with state Bar
Councils to appear in any proceeding before Assessing Authorities as well as
Appellate Authorities of Income Tax.
The Bar council in its petition has referred Madras High
Court Judgment in the case of M. Krishnammal vs T. Balasubramania Pillai, Power
… on 21 April, 1937 -Equivalent citations: AIR 1937 Mad 937.
This may be a major set back for Chartered accountants
after Raise in Limit for Bank Audit and Tax Audits.
Full Text of the above referred Madras High
Court Judgment in the case of M. Krishnammal vs T. Balasubramania Pillai, Power
… on 21 April, 1937 -Equivalent citations: AIR 1937 Mad 937 is as follows
:-
Madras High
Court
M. Krishnammal
vs
T. Balasubramania Pillai, Power
21 April, 1937
Equivalent citations: AIR 1937 Mad 937
JUDGMENT
Beasley, C.J.
1. This matter has been referred to us by Gentle, J. The
following questions have been raised, viz. (1) Whether an agent with a power of
attorney to appear and conduct judicial proceedings has the right of audience
in Court; (2) whether the agent is entitled to notice if his principal wants to
appear and conduct the proceedings himself in person or appoints an advocate to
appear for him; and (3) whether the power of attorney agent can carry on
business as a solicitor or attorney, drafting, engrossing and filing plaint,
Judge’s summons, affidavits and generally issuing legal process and Charge fees
to the principal.
2. That all three questions stand to be answered in the
negative seems to us to be clear; but as the respondent has definitely asserted
a right to the notice specified in question 2, and certainly by strong
implication if not by his conduct to the right of audience stated in question 1
and the matters in question 3 also arise both out of his conduct and claim, we
consider that this matter which is of course of extreme importance to the legal
profession should be fully discussed by us. The matter arises in the following
way: The respondent; is the holder of a power of attorney given to him by one
Krishnammal, a widow. Krishnammal had filed a suit in the Madras City Civil
Court against her sister Thayarammal to get her half share in the assets of one
Palla Kuppammal, deceased, and it was necessary to apply for a search and get
copies of the records in O.P. No. 58 of 1935 (T.O. 8. No. 7 of 1935) on the
file of the High Court and to take further proceedings therein. Being unable to
stay in Madras she appointed the respondent as agent to search the records and
apply for copies thereof in the above matter, to file into and receive from
Court all papers relating thereto, to swear affidavits, to file necessary
petitions and to verify and sign the same, to appear and plead in Court in
parson on my behalf, to engage advocates If necessary and to sign in their
vakalats, to do all acts necessary in the conduct of the above proceedings and
in furtherance thereof.
3. In the before-mentioned litigation (T.O.S. No 7 of
1935) a petition was posted on 16th November 1936 before the Master, and on
that date, when the petition was called on, Mr. T.R. Srinivasa Iyengar appeared
on behalf of Krishnammal having been given a vakalat by her. The petition was
adjourned and the respondent filed an affidavit on 26th November 1936, stating
that Krishnammal had neither orally nor in writing intimated to him that she
did not wish him to appear in the litigation and without revoking his power of
attorney (which be marked as an exhibit) had engaged Mr. T. R Srinivasa
Iyengar, and he further stated that Krishnammal did this in order to deprive
him of the remuneration due to him payable by her; and he claimed that the
power of attorney was of the same force and validity as that of a vakalat and
that, unless it was revoked by formal proceedings through Court, no orders
could be passed on the petition. Therefore, by reason of the authority given to
him in the power of attorney, he claimed the same right as a legal practitioner
who has been given a vakalat; and since the power of attorney authorizes him to
plead in Court, it follows that he claims that right; and indeed we are
informed that either in these proceedings or in some other, Lakshmana Rao, J.
allowed him to address the Court. In view of the claim put forward by the
respondent in the affidavit referred to, the Master posted the matter before
Gentle, J. for orders and he has referred the matter to us and it has been
fully argued here by the learned counsel for the petitioner, Krishnammal, the
Bar Council, the Advocates’ Association and the Attorneys’ Association; and we
have also heard the respondent in person.
4. We may say at once that there is an unreported Bench
decision of this High Court directly in point on the first question in C.M.P.
No. 498 of 1911, where it was held by Benson and Sundara Ayyar, JJ. that a
right to appear in Court for his principal given to a recognized agent by Order
3, Rules 1 and 2, Civil P. C, does not include a right to plead, that it means
simply that one can take proceedings to submit oneself to jurisdiction that the
High Court has under the Letters Patent and the Legal Practitioners’ Act and
under Sections 119 and 122, Civil P. C, power to make rules as to who shall
plead for parties before the High Court in its original and appellate
jurisdiction and in the lower Courts, that Section 10, Letters Patent, makes
provision with regard to who alone can plead before the High Court and that
others such as recognized agents cannot have the right to plead. There are also
two decisions of the Calcutta High Court upon this point, viz. Harchand Ray v.
B.N. Ry. Co., (1916) 3 AIR Cal 181 and In re Eastern Tavoy Minerals
Corporation, Ltd., (1984) 21 AIR Cal 563. In the former, a recognized power of
attorney agent claimed a right to plead in Court on behalf of his principal
under Order 3, Rule 1, Civil P.C., but it was held by Jenkins, C.J. and
Chaterjea, J. that he bad no right of audience; and in the latter ease, a
director of a company holding a power of attorney, authorizing him to appear
for and on behalf of the company, to conduct and represent the company in the
proceedings, claimed the right of audience on behalf of the company and,
applying the ruling in the former case, it was held that he had no right of
audience. It is plain from these three cases that Rules 1 and 2 of Order 3,
Civil P. C, do not give the recognized agent any right to plead in Court on behalf
of his principal either in the appellate or Original Sides of the High Court
and, even if it could be contended successfully that Order 3 gives a right to a
recognized agent to plead in Court on the appellate side, it is clear that he
can have no such right of audience on the Original Side because of Section 119
which provides that:
Nothing in this Code shall be deemed to authorize any
person on behalf of another to address the Court in the exercise of its
original civil jurisdiction, or to examine witnesses, except where the Court
shall have in the exercise of the power conferred by its Charter authorized him
so to do, or to interfere with the power of the High Court to make rules
concerning advocates, vakils and attorneys.
5. The respondent certainly has not been authorized by
the High Court to do so. In this connexion Clauses 9 and 10, Letters Patent,
are important. Clause 9 relates to the powers of the High Court as to the
admission of advocates, vakils and attorneys, and such advocates, vakils and attorneys
as have been approved, admitted and enrolled by the High Court are authorized
to appear for suitors in the High Court and plead or act for them according as
the High Court may by its rules and directions determine and subject to such
rules and directions; and Clause 10 gives the High Court power to make rules
for the qualifications and admission of proper persons to-be advocates, vakils
and attorneys, and empowers the High Court to remove or suspend from practice
on reasonable cause advocates, vakils or attorneys, and enacts thus:
No person whatsoever but such advocates, vakils or
attorneys shall be allowed to act or to plead for, or on behalf of any suitor
in the said High Court, except that any suitors shall be allowed to appear,
plead or act on his own behalf or on behalf of a co-suitor.
6. These two clauses are sufficient to dispose of the
respondent’s claim and in addition, Section 8 of the Bar Councils Act is
equally definite. It is as follows:
No person shall be entitled as of right to practise in
any High Court unless his name is entered in the roll of the advocates of the
High Court maintained under this Act; provided that nothing in this subsection
shall apply to any attorney of the High Court.
7. Section 9 empowers the Bar Council with the previous
sanction of the High Court to make rules to regulate the admission of persons
to be advocates of the High Court. It must be observed that Section 8 is not
limited to the right to ‘plead’ but to the right to ‘practise’. The Legal
Practitioners Act is similarly decisive as regards the mofussil Courts. The
answer to Question No. 1 is so clear that no further reference to statutes or
decided oases is necessary and it must be in the negative.
8. The respondent’s contention regarding Question No. 2
is based on the claim that because of his power of attorney he stands in the
same position as that of an advocate holding a vakalat by reason of Order 39 of
the Original Side Rules. Rule 1 of that Order prohibits a pleader from
appearing, pleading or acting in any suit unless be has filed his vakalat in
Court in accordance with the rules and bis appointment continues under Rule 2
until the death of his client or it is revoked under Rule 3, which provides
that the appointment may be revoked by an order upon a Master’s Summons in
Chambers. Under Rule 2-A, if there is already a pleader on record, a pleader
proposing to file an appointment in the suit may not do so unless he produces
the written consent of the pleader on record or unless, where the consent of
such pleader is refused, he obtains the special permission of the Court; and
Rule 5 prevents a party who has filed an appointment of a pleader from
appearing before the Court except in the absence of his pleader or to make any
application or do any act in person so long as the appointment is in force; and
there are similar provisions in the Appellate Side Rules. By reason of these
rules the respondent claims that as his power of attorney authorizing him to
appear in Court and plead on behalf of Krishnammal has not been revoked, she is
not entitled to give an appointment to Mr. T.R. Srinivasa Aiyangar to act for
her. But as an agent under a power of attorney has no right of audience in
Court, it follows that the power of attorney authorizing him to plead is of no
force whatsoever and upon that ground alone his contention must fail. But quite
apart from that difficulty, there is no warrant whatever for putting a power of
attorney given to a recognized agent to conduct proceedings in Court in the
same category as a vakalat given to a legal practitioner, though probably the
latter may also be described as a power of attorney. The very rules upon which
the respondent relies show that such a power of attorney or appointment as it
is called is confined only to pleaders, that is, those who have a right to
plead in Courts; and Question 2 must therefore also be answered in the
negative.
9. Question 3 raises some important points and, as it is
drafted, does not present any difficulty. Obviously a power of attorney agent
cannot carry on ‘business’ as a solicitor or attorney. To carry on business in
such capacity is to practise. What exactly the word ‘practise’ used in Section
8, Bar Councils Act, means is not defined in the Act but it certainly must be
taken to mean and include everything that a legal practitioner does as such in
the High Court such as Question 3 refers to, namely, drafting, engrossing and
filing plaints, Judge’s summons, affidavits and generally issuing legal process,
and although it is not necessary to say what would constitute carrying on a
‘business’, and each case would depend upon its facts, a clear case of it would
be where an agent has made a habit of doing so, though even one instance might
be sufficient, or if an agent were to take business premises and to hold
himself out as a law agent prepared to act in such matters for remuneration.
Even one isolated act has in England been held to constitute “acting as a
solicitor” rendering persons guilty of such conduct liable to be dealt with
Under Section 26, Solicitors Act of 1860, for contempt of Court: In re
Ainsworth; Ex parte Incorporated Law Society (1906) 2 KB 103. In that case an
unqualified person gave as agent for the defendant in an action the notice of appearance
to the writ required by Order 12, Rule 9 of the Supreme Court Rules, to be
given by the defendant to the plain. tiff or his solicitor and he was held to
be noting in contravention of Section 2, Solicitors Act of 1843, which
prohibits any unqualified person from “acting as a solicitor” or “carrying on
any proceeding” in the superior Courts. There, the unqualified person does not
appear to have done this for remuneration at all and there does not seem to be
any reason why even one isolated instance here should not suffice to constitute
carrying on business or practising. As it stands, therefore, Question 3 has
clearly to be answered in the negative also.
10. In conclusion, we would add the following general
observations with regard to what the claim put forward by the respondent really
amounts to. It is that he should be accorded all the rights and privileges
which are enjoyed by members of the legal profession whose qualifications for
admission to its rank are laid down in the rules made by the Bar Council with
the sanction of the High Court, and whose (professional conduct thereafter is
regulated by rules of practice and professional etiquette and who are subject
to the disciplinary control of the High Court; whereas the respondent need
possess no qualifications whatsoever as regards education and character and is
not bound by any rules of professional conduct or etiquette and is not subject
to the disciplinary control of the High Court or of any one; and there can be
no better example than this case itself affords of the highly objectionable
result such a claim may lead to, and actually has led to here, because the
respondent claims to be remunerated by his principal for his services in
question and before us stated that the condition regulating his payment is that
he is to receive it only if the result of the proceedings is successful but not
otherwise. On his own admission, this is a transaction which, if entered upon
by a legal practitioner, would at once render him liable to strong disciplinary
action, for to engage in speculative litigation is a grave breach of
professional conduct. Yet his claim is that he is free to undertake such
business and this is only one example of probable resultant evils.
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