Jasmine KaurJasmine Kaur asked 2 years ago

Q1. A member of ICAI who is also a lawyer and is practising as a lawyer and not as CA. Can he represent in ITAT as lawyer and not as CA? Further if he wants to represent as CA not holding COP can he do so? Please provide ans in detail Q2. Can a CA in practice while using email signature use the phrase for example celebrating 50 years of excellence? This would count as professional attainment under clause 7 and will be a misconduct? If yes, then there are many such and website related misconduct how the institute will get knowledge of all this and consequences or actions to be taken?

6 Answers
RaviRavi Staff answered 2 years ago

Q1 hello jasmine, you can comment on same link, here itself what details you are expecting 🙂 after asking question you can comment back using “answer” option.
Once a person become chartered accountant , all ca related work like accountancy , audit, tax, finance can be done only in one professional capacity as CA only, he cannot work incapacity of advocate, this concept is discussed in  Sec 6 COP video.
Further if he wants to represent he needs COP, COP is must to represent in front of ITAT. But if he is employee of company and he can represent only that company as employee in front of ITAT without COP.
Q2
Yes if CA uses such phrases, then is will amount to highlighting professional attainments and he is guilty under clause.
 
i agree on daily basis you will find many instances where professional ethics is not followed. there is no mechanism to go and detect all such instances of misconduct. Other CAs or Anyone can put complaint or inform ICAI or if matter is highlighted in media then take action sumo-to .
Generally when disputes happen , parties against CA inform ICAI about misconducts. so reporting happens , depending on how good are CAs opponents  

Auditaudit Staff answered 2 years ago

Sir, as regards the first answer, There is one person practising as an advocate who represents various clients before ITAT and HC and he is a CA also who has surrendered his COP. How it is possible as it is a huge misconduct and that person has been a senior council member in past so it is not possible that the said fact is not in notice with ICAI?

RaviRavi Staff answered 2 years ago

even if you surrender COP still you cannot do ca related work without COP. You never know he must have surrendered CA membership also. Definitely its a misconduct.
yes i understand there is lacuna in system and its implementation. you can put doubt to him and ask him.  

RaviRavi Staff answered 2 years ago

from academics point of view, above stand is perfect

Auditaudit Staff answered 2 years ago

Sir, tax representation or any tax related work is neither covered u/s 2(2) nor under the MCS. So where it is written? and if tax specific representation is not there under the specified works of CA then there is no compulsion to do that in capacity as CA.

RaviRavi Staff answered 2 years ago

we have specified it in in our notes in member deemed to be in practice and also sec 6 discussion 🙂
below content is from code of ethics of icai, given to all members
5.3 Significance of the certificate of Practice

5.3.1 A member who is not in practice, is precluded from accepting engagement to render services of any of the types normally prescribed for a Chartered Accountant, even though for doing so, he does not require special qualifications. For example, a member of the Institute who was in practice till the 10th November, 1954, was by an order of the High Court dated 11th November, 1954 suspended from practice for a period of six months though not removed from membership. [Ref. A.C. Kaher in Re:- Page 64 of Vol. IV(1) of Disciplinary Cases].
Pursuant to the order of the High Court, he was asked to surrender the Certificate of Practice issued to him for the period of suspension which he did. He, however, wrote to the Institute enquiring whether he could practice as an income-tax practitioner under Section 61 of the Indian Income-tax Act, 1922 being qualified otherwise than as a Chartered Accountant to do so. In reply he was informed that if a member acted as a representative in taxation matters, he would be deemed to be in practice as a Chartered Accountant, and his attention in this connection was drawn to Section 2(2) of the Chartered Accountants Act and Regulation 78 of the Chartered Accountants Regulations 1949. He wrote back to the Institute saying that he was not “going in for practice as Chartered Accountant but doing income-tax cases as per the provisions of Section 61 (iv) (a) (b) and (c) of the Indian Income-tax Act, 1922″. He also stated that in his opinion Section 2(2) of the Chartered Accountants Act did not supersede Section 61 of the Indian Income-tax Act, and that he was entitled to practise as an Income-tax practitioner even before becoming a member of the Institute and he had only resumed this work since he could not practice as a Chartered Accountant. He was again informed by the Institute that he continued to be a member of the Institute but was only suspended from practice under the Order of the High Court for a period of six months, and that he should comply with the provisions of the Act and the Regulations in so far as they were applicable to a member of the Institute. The Commissioner of Income-tax, Punjab, PEPSU, Himachal Pradesh, J & K also informed the Institute that the member concerned had made similar representation to the Income-tax Department, that although he was suspended from practice, he could still practice as an
income-tax practitioner under Section 61 of the Indian Income-tax Act, 1922.

5.3.2 The above contention of the member was not accepted by the
Council on the following grounds:
“(a) Once the person concerned becomes a member of the Institute, he is bound by the provisions of the Chartered Accountants Act and its Regulations. If and when he appears before the Income-tax Tribunal as an Income-tax representative after having become a member of the Institute, he could so appear only in his capacity as a Chartered Accountant and a member of the Institute. Having, as it were, brought himself within the jurisdiction of the Chartered Accountants Act and its Regulations, he could not set them at naught by contending that even though he continues to be a member of the Institute and has been punished by suspension from practice as a member, he would be entitled, in substance, to practice in some other capacity.
(b) A member of the Institute can have no other capacity in which he can take up such practice, separable from his capacity to practice as a member of the Institute.”


5.3.3 A Chartered Accountant whose name has been removed from the membership for professional and/or other misconduct, during such period of removal, will not appear before the various tax authorities or other bodies before whom he could have appeared in his capacity as a member of this Institute.

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