N.M. RANKA, Senior Advocate

INTRODUCTION

With the achievement of independence in 1947, adoption of Constitution in the year 1950, declaration of Concept of socialistic pattern and social welfare, innumerable laws levying tax, duty cess, etc, have been imposed . On account of uncontrollable cost of governance, defense, internal security, indiscipline amongst executive and administrate collosal waste of money at all levels and slogans to provide water, food, cloth and housing to teeming millions below poverty line, there is rat race in Union and all the states to coin new and innovative names of taxes, levy and collect. There exists tendency to collect more at the level of tax administration and to pay the least on the part of tax payers. To keep balance to put a check on arrogant tax collector and a greedy tax payers, and with an objective that correct taxes are paid, No LESS - NO MORE, each enactment permits representation by an authorised representative. Anew class of tax consultants like tax Advocates Chartered Accountants, Tax practitioners emerged. There have been a phenomenal rise of tax professionals during the last 53 years of independence.

THE TAX LAWS

The tax laws are complicated complex highly technical and beyond understanding of a commoner. Interpretation of tax laws is very much painful and difficult. An honest effort has been made during the past six years to simplify and rationalise the tax laws. However, it is too difficult a task particularly when tax laws are interpreted and construed by a fairly large number of intelligentsia but are made by a very few persons in number. Lately, there has developed a tendency to amend tax laws frequently, on a slight provocation as to misuse by ignorable few and retrospectively. It is not a healthy sign. It is immoral and unethical. It does not very much affect the national exchequer but puts a greater injury to a citizen of this great democracy. It shakes faith of the taxpayers in tax laws, puts hurdles to voluntary compliance and drag the taxpayers to adopt immoral means.

THE TAX ADMINISTRATION

It is being noticed that efficiency and expeditious disposal are absent. Papers do not move, petitions remain unacknowledged, no decision is taken inspite of repeated reminders. It is required of a taxpayer to make petition again and again and to forward it to the Vigilance Call. Unending time, energy and money is required to be wasted of a taxpayer. Though it is unlikely that the tax collector shall collect only such tax which is legitimately leviable and due and it is equally unlikely that the taxpayers would pay the tax which is legally due. But there is always a need for the above said authorities to resolve the disputes of the tax collectors and taxpayers in orderly manner. It is for the tax administration to evolve ways and means whereby an honest, upright and clean taxpayer is provided the necessary atmosphere to remain honest and clear and is not dragged to the path of corruption. The taxpayers are not basically corrupt but are led to corruption on account of ill-treatment received at the hands of the tax administration.

Powers corrupts a person. The persons in tax administration are not an exception. However, by inculcating work culture, infusing efficiency and taking immediate action, may contribute to curbing of malpractices, etc. The concept of authority and power exercised by the public functionaries has many dimensions. The authority empowered to function under a statute while exercising power discharges a public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bonafidely, loss may accrue to the exchequer. It would be tolerable. But where the duty is performed capriciously or the exercise of power results in harassment ad agony, then the concerned authority should be held responsible. In a democratic society, no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and a taxpayer is made to run from pillar to post with no result. Even in ordinary matters, a small assessee, who has neither political backing nor the financial strength to match inaction in public-oriented Departments, gets frustrated and it erodes credibility in the system.

Slogan of 'SARAL, SAMADHAN & SAMMAN' AS WELL as well as Citizens Charter are only paper bullets for political gain with negligible effect on tax authorities. Human rights of tax payers at the time of Survey, Search and recording of statements are violated and complaints ignored even by the higher and highest authorities. Behaviour and treatment is not humane rather in-human.

THE TAX PROFESSION

The Chartered Accountants Act was enacted to codify the law relating to accountancy profession. The Advocates Act, 1961 amended and cofified the law relating to legal practitioners. The complete control and jurisdiction regarding enrolment and their discipline vests with Bar Councils and the Institute of Chartered Accountants of India in respect of Advocates and Chartered Accountants respectively. Bar Councils and the Institute became complete autonomous bodies with elected representatives. Elaborate rules provide for the duty of the members to the court , to the client, to the opponent counsel and to his colleague, to maintain towards the Court a respectful attitude bearing in mind that the dignity of the office is essential for the survival of a free community. That he shall use his best effort to restrain and prevent his client from resorting to sharp or unfair practices or from doing any thing in relation to the Court, officers, colleagues which he himself ought not to do, to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other, etc. The standard of professional and etiquette of the Advocate is - An Advocate shall, at the times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity pay still be improper for an Advocate. Same is for the noble and learned profession of a Chartered Accountant.

The tax consultant has a tripartite relation on with his colleague, another with the tax administration and the third with the taxpayer. The duties of the tax consultants are unique and that is why it has all along been known as a noble profession. Tax consultants are every where deemed essential to protect the public interest and interest of the taxpayer in an orderly society. The tax consultant's participation is ordinarily an assurance that the taxpayer shall not be required to pay a single rupee more or a single rupee less than due to the exchequer. A tax consultant is an officer just as an Advocate is an officer of the Court. He is master of an expertise but more than that accountable to the tax administration and governed by a high ethic. The success of tax assessment depends upon the services of the tax profession to the society.

Tax profession is not a craft but a calling ; a profession wherein devotion to duty constitutes the hallmark. Sincerity of performance and the earnestness of endeavour are the two wings that will bare aloft the tax consultants to the tower of success. Given these virtues other qualifications will follow on their own.

The tax consultants have onerous duties to perform. A strong united and independent bar ready to see that due taxes alone are paid, will have a very sobering effect on the tax administration. A principled tax consultant with sterling character will be a great check on the tax administration as well as taxpayers. The tax professional should have a sense of sacrifice and sense of service. The tax consultants are professionals and not businessmen.

A tax consultant should have the professional capacity, proper professional training and good knowledge of tax laws and the procedure. He should maintain a very good library with latest books on tax laws and should devote at least two to three hours a day in the study of the tax laws and different decisions of the Supreme Court, High courts and different benches of the Tax Tribunals. He should see that the taxpayer remains on the right path and is not misguided or ill-advised. Honour the really honest officer of integrity and socially boycott a corrupt officer. But unless one keeps his own house in order, it may not be possible to tackle the problems of corruption. It is an old saying that one should not throw stone or mud on other while living in a glass house. First of all, the profession should get rid of corrupt and corrupting elements prevailing in the ranks of the tax consultants. The members must unite to fight this evil. Unity is strength. A sense of sacrifice and sense of service would be required to tackle this problem. Code of conduct and a code of ethics should be formulated.

A tax consultant should be very punctual, methodic and systematic. The tax consultant should represent his client's case to the best of his ability. No effort should be spared in properly arming one self on the question of law and fact. Submission of all relevant evidence at proper time and proper stage would help the taxpayer. Detailed submission and explanation should be furnished with sufficient evidence, direct as well as circumstantial, before the assessing authority, itself. The return should accompany all the required papers, documents and accompaniments. Grounds of appeal should be detailed and should accompany statements of facts. As far as possible written submission should be submitted before the first appellate authority. First one should marshal out the facts. Law should be placed only after full placement of facts. While selecting judicial citations, one should be very choosy and selective. He should see that facts of the instant case match with the facts of the cited decision. One different fact may make a lot of difference. instant case match with the facts of the cited decision. One different fact may make a lot of difference.

We live in a fast changing world of nanotechnology, the internet, robot explorations of Mars. Various facets of e-commerce need to be carefully attended to Electronic type-writers, e-mail, fax fast communication gadgets, Computers, C-D Rom and other facilities deserve to be availed of but with a ricer machine is no substitute to 'MAN' & 'HUMAN MIND' is superb- not 'COMPUTERS' Machines are to aid and assist but not to replace a human being.

RESPONSIBILIITIES

Section 6 of the Advocates Act set out of functions of the State Bar council. There is no provision in the Advocate Act Not to enable the Bar Council to deal with the dispute between the client and Advocate, if the client seeks a remedy of damages or refund of money paid to the Advocates or sums on monetary claim. The Bar Council deals with only disciplinery matters and considers whether the Advocate is guilty of misconduct. Hence, it has been held by the Madras High Court in Srimathi & Ors. vs. Union of India AIR 1996 Madras 427 that clause (2) of section 2(d) of the consumer protection Act, 1986 is very wide and an Advocate can be proceeded against under the said Act. The Supreme Court in Indian Medical Association vs. V.P.Shantha (1995) 6 SCC 651 has held that applicability of the Consumer Protection Act cannot be questioned on the ground that the medical practitioner are subject to disciplinary control under Medical Council Act, 1956. Chartered Accountants and other professionals are also covered under the said Act. For negligence an Advocate can be proceeded under other enactments as well.

The Kerala High Court in Council of Institute of Chartered Accountants of India vs. T.S.Ranganathan by judgement dated February 09,2000 held the responded Chartered Accountant guilty of misconduct on detection of totalling mistake of Rupees one lac on the part of audit assistant and approved of penalty of reprimand. I quote the observation of Hon'ble chief Justice Arijit Pasayat :

"The word negligence is associated in the provision with the word "misconduct" and involves some element of moral culpability. More imprudence or want of judgment or grave error judgment is not enough. Misconduct implies failure to act honestly and reasonable either according to the ordinary and natural standard of according to the standard of a particular profession. But error is misinterpretation of law and specially one view or another over a debatable construction cannot be ground for the allegation and finding of professional misconduct against a Chartered Accountant. Negligence is the commission to do something which a reasonable man guided upon those consideration, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It is not absolute or instrinsic, but relative to some circumstances of time, place of persons, imposing a duty to take care. In dealing with matters of professional propriety, one cannot ignore the fact that the profession of chartered accountancy occupies the place of nobility, pride and honour and is a profession of trust. Expertise in the field of accounting and auditing is the hall-mark of the chartered accountant's profession. When a chartered accountant prepares a profit and loss account from the books of account and signs a certificate to that effect, the minimum that he is expected to do is to verify the accuracy of the figures in the profit and loss account with reference to the relevant books of account and he cannot escape the responsibility pleading that he did not audit it and that verification of accounts was done by the staff. As part of his professional duty and responsibility, he was required to take reasonable steps to satisfy himself that the work was carried out in a proper, fair and efficient manner . The certificate was issued by him, and the professional relationship was between him and the client . The intendment and object of the Act is to maintain the standard of the profession at a high level.

**** Mr. N . M . Ranka is President of All India Federation of Tax Practitioners ****