The vanguard in shaping GST Laws: In conversation with Abhishek A. Rastogi

Mr Abhishek A. Rastogi is a CA, dynamic lawyer and an author. Before joining as a Partner at Khaitan & Co. in 2016, he had an experience of 16 years with PricewaterhouseCoopers (PwC) and Ernst & Young (E&Y). In last 3 years, he has to his credit more than 150 writ petitions argued for diverse sectors across courts. He is known as a constitutional expert for tax and fiscal issues, and has received many prestigious awards including the Economic Times 40 under Forty, World Tax Award (highly regarded for tax controversies), Asia Legal Development (top 50 Indian lawyers), Legal Era 40 under 40 and the International Tax Review Award. He has been interviewed by Nisha Gupta, EBC-SCC Online Student Ambassador who is currently pursuing her law from NLU Jodhpur.

 

  1. Sir, before I begin, the team at EBC-SCC Online extends warm greetings and welcomes you. It is indeed a privilege for me to interview you on behalf of the team for our readers.
    Before proceeding further with the interview, would you please take a moment to tell our readers about yourself and your journey from your days at a Big Four to Big Law?

I am both a Chartered Accountant and a lawyer. After I completed my CA Articleship, it was always in my mind to pursue a degree of law. It started several years after I completed my CA. As Chartered Accountants are eligible to argue only before tribunals, I was arguing before one myself. This is when I truly woke up to my potential for arguing cases. As fate would have it, that decision became a landmark decision, and a circular was issued based on that decision to grant benefits to exporters based on the arguments which I had put forth in that matter.

 

This truly encouraged me as a young professional, and I thought that it was the right time to pursue this dream of also becoming a lawyer. I joined Delhi University to make it come true. But because I was with one of the Big Four, I was restricted from appearing before the High Courts. Therefore, after several years, I decided to join a law firm and that is how I became a part of the Khaitan & Co. family.

 

Now, I am proud to say that in the last three years, I have argued more than 150 writ petitions on constitutionality of GST and other provisions. I have been told by the media that I have argued the largest number of GST writs by anyone in the country. To have achieved this feat only within about 3 years of practising law really motivates and encourages me to achieve greater heights.

 

  1. There is often this sentiment attached to tax law that it makes up for a “dry subject” and is largely for accountants. With your academic and professional experience of being a CA as well as a lawyer, do you think that courses such as CA/CS are looked at favourably when one wants to practise tax law or is there a level playing field for law students?

There is no straight answer to this question. I think it is entirely to do with your passion.

 

I have seen various combinations of both a Chartered Accountant and lawyer who make for an excellent arguing tax counsel. At the same time, there are lawyers who are only law graduates and are doing extremely well in the field. I think the bottom line is – and what is also my message to any young professional – that you must have passion in what you are doing.

 

Believe me, you see the top advocates of the country today, they would have at some stage argued on tax laws. But it is not necessary that they have the academic tax background.

 

Granted that tax is a difficult subject – I would not call it “dry”– because the law is very dynamic. The provisions change every year with so many amendments and notifications, unlike a lot of other legal arenas where there are not so many changes. Therefore, to be able to be a tax lawyer, you have to keep yourself updated. In fact, it is very important for any professional to cope up with the change which is happening all around.

 

I also think if you have argued well on tax laws, you can argue on anything. And that is what we have seen in the case of lot of these successful seniors, who started their careers from tax laws but today are arguing across all diverse areas.

 

  1. You are well regarded as a constitutional expert for tax and fiscal issues having authored over a dozen of commentaries on GST, central excise, service tax and foreign trade policy. You are also a partner in the indirect tax practice group at the Khaitan & Co. Over and above that, you also regularly feature in prime business news channels such as ET Now, CNBC and Zee Business, having been featured more than 300 times in prominent business dailies over the last couple of years. How do you manage your time across these different commitments?

Time management is all about using every moment of your life but not compromising on basic things such as health. You need to create a good work-life balance for yourself. And at the end of the day, it is more about passion. It is not that when I am involved with so many matters, I do not spend time with my family and I do not reach out to friends. You need to have a fair balance.

 

You must be methodical and save time in everything that you do. Over a period of time, the learning curve becomes better which allows you to take lesser time for preparation for the next day’s matter. You will have more clarity of thought once you are deeply involved in these assignments. You read much more about your subject and about your cases, and then time management happens automatically.

 

I think there is no rocket science to time management. However, the bottom line remains that you must decide and plan your day. You must also keep apart some time for some unforeseen incidents which may happen. For instance, tomorrow there could be 10 matters and we know for a fact that there will be time required for preparing a matter, but let us say some urgent, controversial matter comes for a client wherein he needs a conference call with you. You need to get some time out of your busy schedule, no matter what.

 

I think you need to have the vision and intuition as well, and then time management can happen only when you plan your calendar, and you know exactly what you need to go in a day and that is the best way to do that.

 

  1. With the law evolving with time, you have contributed heavily to leading the Government and the courts to bring about corrective amendments to many such laws. This means that you travel extensively for writs across India. Of course, with the onset of the pandemic, things must have changed drastically for you. How has Covid-19 affected your professional life and how has it been for you to cope with the functioning of virtual courts?

Unfortunately, gone are the days of getting airline miles and hotel points. On a serious note, if you see the true nature and character of these hearings, virtual courts were bound to become a necessity at some point of time, even before this pandemic. Even the Supreme Court, which you know looks very elegant and is huge, would always be overcrowded. Apart from that, look at the travel time and travel costs, because people would come from all different places to the Supreme Court. Virtual courts can help save travel time and save out of pocket expenses, which ultimately are getting charged to the clients.

 

Therefore, at some point of time, even when the world is back to normal, it will become an option to appear virtually in a court. Of course, it is always better to have physical hearings in some matters because they may require long arguments, not allowing you to spend even an ounce of your energy and focus on technology instead of the technicalities of the issue. At the same time, there would be lot of such matters which take just about 30 seconds or a minute because it is either the next date or the counter has not been filed or there is some urgency with respect to extension of stay, etc. Those matters should be addressed virtually. Therefore, I think virtual courts in this pandemic were a blessing in disguise, as desperate times called for desperate measures. We all learnt from this quite a bit; even the senior lawyers have now become used to using technology.

 

Knowing that technology will remain the name of the game, it is imperative that we improve our infrastructure to work at the global international level because the global audiences are also watching the Indian judicial system.

 

I think the way which we have moved in last three years, whether these are online data of cases, online reporting of cases, mobile applications which track dates on matters, etc., I think there is a fundamental change. These have already become disruptors in a way, and carrying forward, this technology will become a disruptor for the entire judicial system. When I say disruptor, it must be seen in a positive manner – it will disrupt the old traditional practices to provide us with a more efficient system.

 

  1. Keeping in mind the ever-evolving nature of laws and the changes being brought in especially to the field of tax laws, what do you think is the future of tax laws? How do you feel about the various amnesty schemes being released every now and then?

Tax laws will remain dynamic – which makes it both, difficult and interesting. With all the changes that are constantly being brought on when it comes to tax laws, one must develop the habit of explaining the concepts in very simple way by making use of illustrative examples and hypothetical situations.

 

Amnesty schemes are a great idea – you need to reduce litigation at every level and you need to litigate only for the right reason and for the right cause. I always tell my clients and friends that ‘L’ stands for law and ‘L’ also stands for logic.

 

Equity jurisdiction does not work easily for tax laws, but I have myself tried to use equity in lot of these matters when arguing writ petitions in different courts. I think at the end of the day Judges also understand that what is the need – is there applicability of Article 14, keeping in mind the wide scope of the article where arbitrariness can be argued on any level based on logic and intelligible differentia. So, from that perspective, it is imperative that we learn everyday.

 

  1. After your experience of many years in this field, what would you say has more scope in India – tax advisory or litigation?

This is a difficult one to answer. But I think everything has scope in India. Every individual and professional must do introspection to figure out what they are meant for.

 

For instance, I can safely say that my drafting skills are impeccable, and I have also written so many books. But in spite of all this, I would not love to draft; I would love to argue. Not only am I happier arguing, but I also believe that I will be able to give more justice to the profession if I am arguing the matters. One must realise that you could be good or bad at anything or everything but there will be at least one thing at which you will be very good.

 

Imagine, if Sachin Tendulkar was forced to play golf and Tiger Woods was forced to play cricket, it will not work, right? Simply because they are not meant to do that and they do not have the passion to do that. Without passion, it all becomes work, and it seems like nothing more than just work.

 

A lot of people asked me how I do what I do. In the year 2019-2020, I took more than 125 flights and I stayed more than 100 nights in hotels. Sometimes taking early morning flights, when I am reading my file, the person sitting next to me would ask me if it is difficult to get up at 3 o’clock in the morning, take 6 o’clock flight, read during the flight and then reach the court and argue. I always say no because it is not “work” for me – I am passionate enough to do what I do and I do it happily. Once you have the passion to do something, the entire mindset changes. It is not work at all, it becomes something you are always looking forward to.

 

My message is very clear – if you are passionate to do something, you will do well and you will earn well. At some point, you will need to take some risk in your life, especially the young professionals who should not go after money in the initial phase but must actually pursue their passion, and allow money and fame to follow.

 

  1. You have argued more than 150 writ petitions. What would you say has been your favourite argument?

A lot of people ask me this question and I always say that the best argument which I have ever done is the only case which I have ever lost. The argument was happening at such a quality level that the entire courtroom was left impressed. Unfortunately, the order did not support me but now the matter is in the same court again for review and is expected to be heard all over again at length.

 

It was truly one of the most difficult ones when I was arguing on the constitutionality of a statutory tax provision. Towards the end, after the matter was heard for several days, the Judges wanted me to very expressly reiterate on the constitutional validity. Now that the matter is live again in the High Court, it is an exciting time to see what will happen next.

 

  1. Lastly, Sir, with the everchanging world around us – which is now more unstable than ever – what would be your advice to young lawyers to help them achieve their goals with the same drive as you do? Also, what are your views on the concept of “exhaustion of a search”?

Research remains a very important aspect of our professional journey. Secondly, you cannot ignore the hard work, you cannot miss out on any angle.

 

When an intern hesitantly approaches me to ask something regarding a brief, I always tell them that sometimes the most important idea or an argument for matter may even come from an intern. Even you feel that your input is stupid, it could actually become the most logical point for one to argue in the court. So, there is nothing illogical or logical, and sometimes young professionals give lot of good ideas because they are thinking from different mindset altogether.

 

In fact, when I got Economic Times “40 under 40” award, I spoke to one of the jurists and asked him what exactly they liked the most in my profile. He told me that I had done lot of out of the box thinking and that put me a class apart from a lot of people, which made it very easy for them to take their decision. So, I think as an advocate out of the box thinking, proper research, hard work and being open to listening new ideas and thoughts, is something that will always set one apart.

 

It often happens that when we are drafting the first petition on a particular issue, we only have a few arguments in the beginning. But when you conclude the final arguments your initial draft and the final set of arguments could be very different because thoughts are coming to your mind every time you create a draft. When we are preparing the research document, the research has to be exhaustive – we need to look into more details, more jurisdictions, different laws, etc.

 

Secondly you do not know what sort of argument would click. So what I do is that I never refer to my cheat sheet, which I prepared first day of the hearing. I never refer to that cheat sheet for my next hearing. I first apply my mind on the issue so that new thoughts come to my mind. And only when I have exhausted my internal thinking, I go back to my first cheat sheet and see whether I need to update my cheat sheet.

 

As for exhaustion of research, I must start out by pointing out a mistake I often see law students make – they always go to look for case laws first. As a rule, you must never go to the case laws first because the moment you go to the case laws you become biased.

 

So how should your research flow?

Understanding the problem is most important; application of our mind must be there on the problem which is there at hand. Then you go sequentially – 1. Whether there is anything in our Indian Constitution to support our arguments; 2. is there anything in the statute to support the arguments?; and 3. if the statute and the Constitution are not helping us, then you come to the procedural laws, notifications, circulars, etc. Once the research is complete with respect to these technical aspects and after the application of our mind, then you come to the case laws. The case laws should always come at the end.

When it comes to researching on the case laws, you must always start with the Supreme Court and then go to the High Courts and other courts. If you have missed out on something and there is a straight case law on that point, then from that case law, you would get both sides of the argument, which would then become the starting point for more research. Cases must supplement our argument; they must not become a backbone of the argument.

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