Income Tax Act

Official PDF pages 451–455

SOURCE PDF PAGE 451
(4) The President of the Appellate Tribunal may, for the disposal of any particular
case, constitute a Special Bench consisting of three or more members, one of whom
shall necessarily be a judicial member and one an accountant member.
(5) If the members of a Bench differ in opinion on any point, the point shall be
decided according to the opinion of the majority, if there is a majority, but if the
members are equally divided, they shall state the point or points on which they
differ, and the case shall be referred by the President of the Appellate Tribunal for
hearing on such point or points by one or more of the other members of the Appel -
late Tribunal, and such point or points shall be decided according to the opinion
of the majority of the members of the Appellate Tribunal who have heard the case,
including those who first heard it.
(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power
to regulate its own procedure and the procedure of Benches thereof in all matters
arising out of the exercise of its powers or of the discharge of its functions, including
the places at which the Benches shall hold their sittings.
(7) The Appellate Tribunal, for the purposes of discharging its functions, shall have
all the powers which are vested in the income-tax authorities referred to in section
246, and any proceeding before the Appellate Tribunal shall be deemed to be a
judicial proceeding within the meaning of sections 229 and 267 and for the purposes
of section 233 of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023), and the Appellate
Tribunal shall be deemed to be a Civil Court for all the purposes of section 215 and
Chapter XXXVII of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) .
3. —Appeals to High Court
Appeal to High Court.
365.   (1) An appeal shall lie to the High Court from every order passed in
appeal by the Appellate Tribunal, if the High Court is satisfied that the
case involves a substantial question of law.
(2) The Principal Chief Commissioner or Chief Commissioner or the Principal
Commissioner or Commissioner or an assessee aggrieved by any order passed by
the Appellate Tribunal may file an appeal to the High Court and such appeal under
this sub-section shall be—
( a )   filed within one hundred and twenty days from the date on which the
order appealed against is received by the assessee or the Principal Chief
Commissioner or Chief Commissioner or Principal Commissioner or
Commissioner;
( b )   in the form of a memorandum of appeal precisely stating therein the
substantial question of law involved.
(3) The High Court may admit an appeal after the expiry of the period of one hundred
and twenty days referred to in sub-section (2)( a ), if it is satisfied that there was a
sufficient cause for not filing the same within the said period.
(4) Where the High Court is satisfied that a substantial question of law is involved
in any case, it shall formulate that question.
(5) The appeal shall be heard only on the question so formulated, and the respon -
dents shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question.

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SOURCE PDF PAGE 452
(6) The provisions of sub-section (5) shall not take away or abridge the power of the
court to hear, for reasons to be recorded, the appeal on any other substantial question
of law not formulated by it, if it is satisfied that the case involves such question.
(7) The High Court shall decide the question of law so formulated and deliver
such judgment thereon containing the grounds on which such decision is founded
and may award such cost as it deems fit.
(8) The High Court may determine any issue which the Appellate Tribunal,—
( a )   has not determined; or
( b )   has wrongly determined, by reason of a decision on such question of law
as is referred to in sub-section (1).
(9) Save as otherwise provided in this Act, the provisions of the Code of Civil Pro -
cedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may
be, apply in the case of appeals under this section.
(10) Where the High Court delivers a judgment in an appeal filed before it under
this section, effect shall be given to such order by the Assessing Officer, on the basis
of a certified copy of the judgment.
Case before High Court to be heard by not less than two Judges.
366.   (1) When an appeal has been filed before the High Court under section 365,
it shall be heard by a bench of not less than two Judges of the High Court,
and shall be decided as per the opinion of such Judges or of the majority, if any, of
such Judges.
(2) Where there is no such majority, the Judges shall state the point of law upon
which they differ and the case shall then be heard upon that point only by one or
more of the other Judges of the High Court and such point shall be decided accord -
ing to the opinion of the majority of the Judges who have heard the case including
those who first heard it.
4. —Appeals to Supreme Court
Appeal to Supreme Court.
367.   An appeal shall lie to the Supreme Court from any judgment of the High
Court delivered on an appeal made to High Court in respect of an order
passed under section 363 in any case which the High Court certifies to be fit for
appeal to the Supreme Court.
Hearing before Supreme Court.
368.   (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating
to   appeals to the Supreme Court shall, so far as may be, apply in the case
of appeals under section 367 as they apply in the case of appeals from decrees of a
High Court.
(2) The costs of the appeal shall be at the discretion of the Supreme Court.
(3) Where the judgment of the High Court is varied or reversed in the appeal, effect
shall be given to the order of the Supreme Court in the manner provided in section
365(10)   in the case of a judgment of the High Court.

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SOURCE PDF PAGE 453
5. —General
Tax to be paid irrespective of appeal, etc.
369.   Irrespective of the fact that an appeal has been preferred to the High Court
or the Supreme Court, tax shall be payable as per the assessment made in the
case.
Execution for costs awarded by Supreme Court.
370.   The High Court may, on petition made for the execution of the order of the
Supreme Court in respect of any costs awarded thereby, transmit the order
for execution to any court subordinate to the High Court.
Amendment of assessment on appeal.
371.   If as a result of an appeal under section 356 or 357 or 362, any change is
made in the assessment of a body of individuals or an association of persons, or
a new assessment is directed in such cases, the Joint Commissioner (Appeals) or the
Commissioner (Appeals) or the Appellate Tribunal, shall pass an order authorising
the Assessing Officer either to amend the assessment made on any member of the
body or association or to make a fresh assessment on such member.
Exclusion of time taken for copy.
372.   In computing the period of limitation prescribed for an appeal or an
application under this Act, the day on which the order complained of was
served and, if the assessee was not provided with a copy of the order when the notice
of the order was served, the time required to obtain a copy of such order, shall be
excluded.
Filing of appeal by income-tax authority.
373.   (1) The Board may, from time to time, issue orders, instructions or directions
to other income-tax authorities, fixing such monetary limits as it may deem
fit, for the purpose of regulating filing of appeal by any income-tax authority under
the provisions of this Chapter.
(2) Where, in pursuance of the orders, instructions or directions issued under
sub-section (1), an income-tax authority has not filed any appeal on any issue in
the case of an assessee for any tax year, it shall not preclude such authority from
filing an appeal on the same issue in the case of—
( a )   the same assessee for any other tax year; or
( b )   any other assessee for the same or any other tax year.
(3) Where no appeal has been filed by an income-tax authority pursuant to the orders
or instructions or directions issued under sub-section (1), it shall not be lawful for an
assessee, being a party in any appeal, to contend that the income-tax authority has
acquiesced in the decision on the disputed issue by not filing an appeal in any case.
(4) The Appellate Tribunal or Court, hearing such appeal, shall have regard to the
orders, instructions or directions issued under sub-section (1) and the circumstances
under which such appeal was filed or not filed in respect of any case.
Interpretation of “High Court”.
374.   For the purposes of this Chapter, “High Court” means,—
( i )   for any State, the High Court for that State;

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SOURCE PDF PAGE 454
( ii )   for the Union territory of Jammu and Kashmir, the High Court of Jammu
and Kashmir and Ladakh;
( iii )   for the Union territory of Ladakh, the High Court of Jammu and Kashmir
and Ladakh;
( iv )   for the Union territory of the Andaman and Nicobar Islands, the High
Court at Calcutta;
( v )   for the Union territory of Lakshadweep, the High Court of Kerala;
( vi )   for the Union territory of Chandigarh, the High Court of Punjab and
Haryana;
( vii )   for the Union territories of Dadra and Nagar Haveli and Daman and Diu,
the High Court at Bombay;
( viii )   for the Union territory of Puducherry, the High Court at Madras; and
( ix )   for the National Capital Territory of Delhi, the High Court of Delhi.
B.—Special provisions for avoiding repetitive appeals
Procedure when assessee claims identical question of law is pending before
High Court or Supreme Court.
375.   (1) Irrespective of anything contained in this Act, where an assessee claims
that—
( a )   any question of law arising in his case for a tax year pending before the
Assessing Officer or any appellate authority (such case being herein
referred to as the relevant case) is identical with a question of law arising
in his case for another tax year (such case being herein referred to as
the other case); and
( b )   such question of law for such other case is pending—
( i )   before the High Court on a reference under section 256 or on an
appeal under section 260A of the Income-tax Act, 1961 (43 of 1961);
or
( ii )   before the Supreme Court on a reference under section 257 or on
an appeal under section 261 of the Income-tax Act, 1961 (43 of
1961); or
( iii )   before the High Court on an appeal made under section 365; or
( iv )   before the Supreme Court on appeal made under section 367; or
( v )   in a Special Leave Petition under article 136 of the Constitution,
against the order of the Appellate Tribunal or the jurisdictional
High Court,
he may furnish a declaration to the Assessing Officer or the appellate authority, in
such form and manner, as may be prescribed, that if the Assessing Officer or the
appellate authority agrees to apply in the relevant case the final decision on the
question of law in the other case, he shall not raise such question of law in the rele -
vant case before any appellate authority or in a subsequent appeal before a higher
forum.

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SOURCE PDF PAGE 455
(2) Where a declaration under sub-section (1) is furnished to any appellate authority,
the appellate authority shall—
( a )   call for a report from the Assessing Officer on the correctness of the claim
made by the assessee; and
( b )   allow the Assessing Officer an opportunity of being heard in the matter,
if such request is made by him.
(3) The Assessing Officer or the appellate authority, may, by an order in writing,—
( a )   admit the claim of the assessee if he or it is satisfied that the question of
law arising in the relevant case is identical with the question of law in
the other case; or
( b )   reject the claim if he or it is not so satisfied.
(4) An order under sub-section (3) shall be final and shall not be called in question
in any proceeding by way of appeal or revision under this Act.
(5) Where a claim is admitted under sub-section (3),—
( a )   the Assessing Officer or the appellate authority, may make an order
disposing of the relevant case without awaiting the final decision on the
question of law in the other case; and
( b )   the assessee shall not be entitled to raise, in relation to the relevant case,
such question of law in appeal before any appellate authority or in any
subsequent appeal before a higher forum.
(6) When the decision on the question of law in the other case becomes final, it shall
be applied to the relevant case and the Assessing Officer or the appellate authority,
shall, if necessary, amend the order referred to in sub-section (5)( a ) in conformity
with such decision.
(7) For the purposes of this section,—
( a )   “appellate authority” means the Joint Commissioner (Appeals) or the
Commissioner (Appeals) or the Appellate Tribunal;
( b )   “case”, in relation to an assessee, means any proceeding under this Act
for the assessment of the total income of the assessee or for the imposi -
tion of any penalty or fine on him; and
( c )   “subsequent appeal before a higher forum” means the appeal before
the High Court under section 365 or appeal before the Supreme Court
under section 367 or in a Special Leave Petition under article 136 of
the Constitution, against the order of the Appellate Tribunal or the
jurisdictional High Court.
Procedure where an identical question of law is pending before High Courts
or Supreme Court.
376.   (1) Irrespective of anything contained in this Act, where the collegium is of
the opinion that—
( a )   any question of law arising in the case of an assessee for any tax year
(such case being herein referred to as the relevant case) is identical with
a question of law arising,—
( i )   in his case for any other tax year; or
( ii )   in the case of any other assessee for any tax year; and