Guwahati HC stays decision on imposition of service tax for lawyers
May, 02nd 2011
The amendment to the Finance Act introducing service tax on lawyers has been stayed by the Gauhati high court. After the amendment, the representation by an advocate in any court, tribunal or authority will be subject to levy of service tax. The stay came following a petition filed by the Gauhati High Court Bar Association, which has 2,500 members, and its president, Apurba Kumar Sharma.
Apart from the Union government, the petition has named ministry of finance and Central Board of Direct Taxes as respondents. The petition opposes imposition of service tax on lawyers representing individual litigants.
Counsels for the petitioner senior advocate Ashok Saraf and advocate Medha Gope argued that an advocate is an officer of the court and assists in dispensing justice.
Thus it cannot be considered as rendering service for their clients, adds the petition. It is for this reason that the fees received by an advocate is regarded as a mere honorarium and not as a matter of contractual right, adds the petition.
As practising law cannot be considered as service, service tax cannot be levied, adds the petition. Besides, a transaction cannot be termed as income and service at the same time. The standing counsel for the Centre, B Sarma, sought time to take instructions.
The petition is scheduled for hearing on May 25.
The Bombay Bar Association and the Advocates Association of Western India have passed resolution opposing the amendment. A senior advocate from Mumbai said the order could be cited for obtaining a stay in case a similar petition filed in the Bombay HC.