- (1.) In the writ petition, which has been admitted by an order passed the Division Bench on 6 August 2014, there is a challenge to the validity of Rule 73 of the U.P. Value Added Tax Rules, 2008 on the ground that they are ultra vires the provisions of the U.P. Value Added Tax Act, 2008 and the Advocates Act, 1961 insofar as it permits persons who are not Advocates 'to appear and represent' before the authorities established under the Act of 2008. Besides challenging a circular dated 1 May 2013 of the Additional Commissioner, Commercial Tax, the petitioners have sought a mandamus to the respondents not to allow or permit any person other than an Advocate as defined under the Act of 1961 to practice, appear and represent any dealer before the authorities established under the Act of 2008. On 6 August 2014, when the petition was admitted by the Division Bench, the following interim order was passed: "In the meantime, as an interim measure, we direct the respondents that no person whosoever, may be permitted to advertise in the Newspaper or any leaflet, inviting assesses for the purpose of filing of return or arguing before the authority under the VAT Act. Any person, who is not a registered advocate, shall not be permitted to appear before the Authority under the VAT Act."
(2.) Applications for impleadment and for vacating the interim order have been filed before this Court by the Institute of Chartered Accountants of India and by the Institute of Company Secretaries of India. We allow the impleadment applications. The applications for vacating the interim order have been heard.
(3.) Section 79 of the Act of 2008 empowers the State Government to make rules to carry out the purposes of the Act. Under sub-section (2) of Section 79 of the Act of 2008, it has been specified that without prejudice to the generality of the powers conferred under sub-section (1), rules may, inter alia, provide for 'generally regulating the procedure to be followed and the forms to be adopted in proceedings under this Act'. Rules of 2008 have been framed in exercise of the rule making power. Sub-section (4) of Section 79 of the Act of 2008 stipulates that all rules, which are made under this Section, shall be published in the Gazette and shall have effect immediately as if enacted in the Act. The Rules, therefore, have force and effect under the Act as if enacted into its provisions and in the same manner as if they are part and parcel of the parent legislation. Rule 73 of the Rules of 2008 provides for representation before the authorities under the Act and is to the following effect: "Rule 73. Representation before the authorities under the Act. - Unless otherwise provided in the Act or these Rules, anything which is by the Act or the rules required or permitted to be done by a dealer, except when he is required to attend personally for examination or affirmation on oath, may be done by a lawyer, an accountant or an authorized agent appointed by the dealer in writing in this behalf." Rule 2 (e) of the Rules of 2008 defined the expression 'accountant', prior to a recent amendment on 27 June 2014, as follows: "2. (e) "Accountant" means a Chartered Accountant as defined in Chartered Accountants Act, 1949, or a member of an Association of Accountants recognized in this behalf by the Central Board of Revenue." Rule 2 (e) of the Rules of 2008 has been recently amended with effect from 27 June 2014. As amended, the expression 'accountant' is now defined as follows: "2. (e) "Accountant" means a Chartered Accountant as defined in Chartered Accountants Act, 1949, or a member of an Association of Accountants recognized in this behalf by the Central Board of Revenue and includes a Company Secretary as defined in the Company Secretaries Act, 1980 and a Cost Accountant as defined in the Cost and Works Accountant Act, 1959.";