CHAPTER XX
APPEALS
AND REVISION
[A.—Appeals [***] to the Deputy Commissioner
(Appeals) and Commissioner (Appeals)
246. (1) Subject to the provisions of sub-section
(2), any assessee aggrieved by any of the following
orders of an Assessing Officer (other than the Deputy Commissioner) may
appeal to the Deputy Commissioner (Appeals) [before the 1st day of June, 2000]
against such order—
(a) an order against the assessee,
where the assessee denies his liability to be
assessed under this Act [, or an intimation under sub-section (1) or
sub-section (1B) of section 143, where the assessee
objects to the making of adjustments,] or any order of assessment under
sub-section (3) of section 143 or section 144, where the assessee
objects to the amount of income assessed, or to the amount of tax determined,
or to the amount of loss computed, or to the status under which he is assessed;
(b) an order of
assessment, reassessment or recomputation under section
147 or section 150;
(c) an order under section 154 or section
155 having the effect of enhancing the assessment or reducing a refund or an
order refusing to allow the claim made by the assessee
under either of the said sections;
(d) an order made
under section 163 treating the assessee as the agent
of a non-resident;
(e) an order under
sub-section (2) or sub-section (3) of section 170;
(f) an order under section
171;
(g) any order under clause (b) of
sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5)
of section 185 [***] [in respect of any assessment for the assessment year
commencing on or before the 1st day of April, 1992];
(h) an order cancelling the registration of a firm under sub-section (1)
or under sub-section (2) of section 186 [***] r[in respect of any assessment for the
assessment year commencing on or before the 1st day of April, 1992];
(i) an order under section
201;
(j) an order under section 216 in respect of
any assessment for the assessment year commencing on the 1st day of April, 1988
or any earlier assessment year;
(k) an order under section
237;
(l) an order imposing a
penalty under—
(i) section 221, or
(ii) section 271, section 271A, section 271B, [***]
[section 272A, section 272AA or section 272BB];
(iii) [***] section 272, section 272B or section 273, as they stood
immediately before the 1st day of April, 1989, in respect of any assessment for
the assessment year commencing on the 1st day of April, 1988 or any earlier
assessment years.
[(1A) Notwithstanding anything contained in
sub-section (1), every appeal filed, on or after the 1st day of October, 1998
but before the 1st day of June, 2000, before the Deputy Commissioner (Appeals)
and any matter arising out of or connected with such appeal and which is so
pending shall stand transferred to the Commissioner (Appeals) and the
Commissioner (Appeals) may proceed with such appeal or matter from the stage at
which it was on that day.]
(2)
Notwithstanding anything contained in sub-section (1), any assessee
aggrieved by any of the following orders (whether made before or after the
appointed day) may appeal to the Commissioner (Appeals) [before the 1st day of
June, 2000] against such order—
(a) [an intimation
or order specified in sub-section (1) where such intimation is sent or such
order] is made by the Deputy Commissioner in exercise of the powers or
functions conferred on or assigned to him under section 120 or section 124;
(b) an order specified in clauses (a)
to (e) (both inclusive) and clauses (i)
to (l) (both inclusive) of sub-section (1) [or an order under section
104, as it stood immediately before the 1st day of April, 1988 in respect of
any assessment for the assessment year commencing on the 1st day of April, 1987
or any earlier assessment year] made against the assessee,
being a company;
(c) an order of
assessment made after the 30th day of September, 1984, on the basis of the
directions issued by the Deputy Commissioner under section 144A;
(d) an order made
by the Deputy Commissioner under section 154;
[(da) an order of assessment made by an Assessing
Officer under clause (c) of section 158BC, in respect of search
initiated under section 132 or books of account, other documents or any assets
requisitioned under section 132A, on or after the 1st day of January, 1997;
(db) an order imposing a penalty under
sub-section (2) of section 158BFA;]
(e) an order
imposing a penalty under section 271B [or section 271BB];
[(ee) an order made by a Deputy Commissioner
imposing a penalty under section 271C, section 271D or section 271E;]
(f) an order made
by a Deputy Commissioner or a Deputy Director imposing a penalty under section
272A;
[(ff) an order made by a Deputy Commissioner
imposing a penalty under section 272AA;]
[(g) an order imposing a penalty under Chapter
XXI by the Income-tax Officer or the Assistant Commissioner where such penalty
has been imposed with the previous approval of the Deputy Commissioner under
sub-section (2) of section 274;]
(h) an order made by an Assessing Officer
(other than Deputy Commissioner) under the provisions of this Act in the case
of such person or classes of persons as the Board may, having regard to the
nature of the cases, the complexities involved and other relevant
considerations, direct.
(3)
Notwithstanding anything contained in sub-section (1), the Board or the
Director General, or the Chief Commissioner or Commissioner if so authorized by
the Board, may, by order in writing, transfer any appeal which is pending
before a Deputy Commissioner (Appeals) and any matter arising out of or
connected with such appeal and which is so pending, to the Commissioner
(Appeals) if the Board or, as the case may be, the Director General or Chief
Commissioner or Commissioner (at the request of the appellant or otherwise) is
satisfied that it is necessary or expedient so to do having regard to the
nature of the case, the complexities involved and other relevant considerations
and the Commissioner (Appeals) may proceed with such appeal or matter, from the
stage at which it was before it was so transferred:
Provided that the appellant may demand that before
proceeding further with the appeal or matter, the previous proceeding or any
part thereof be re-opened or that he be reheard.
Explanation.—For the purposes of
this section,—
(a) “appointed day” means the 10th day of
July, 1978, being the day appointed under section 39 of the Finance (No. 2) Act,
1977 (29 of 1977);
(b) “status” means
the category under which the assessee is assessed as
“individual”, “Hindu undivided family” and so on.]
[Appealable orders
before Commissioner (Appeals).
246A. (1) Any assessee
aggrieved by any of the following orders (whether made before or after the
appointed day) may appeal to the Commissioner (Appeals) against—
(a) an order [passed by a Joint Commissioner
under clause (ii) of sub-section (3) of section 115VP or an order] against the assessee
where the assessee denies his liability to be
assessed under this Act or an intimation under sub-section (1) or sub-section
(1B) of section 143, where the assessee objects to the making of adjustments, or any order
of assessment under sub-section (3) of section 143 or section 144, to the income assessed, or to the amount of tax determined, or to the
amount of loss computed, or to the status under which he is assessed;
[(aa) an order of assessment under sub-section
(3) of section 115WE
or section 115WF, where
the assessee, being an employer objects to the value
of fringe benefits assessed;
(ab) an order of assessment or
reassessment under section 115WG;]
(b) an order of
assessment, reassessment or recomputation under section
147 or section 150;
[(ba) an order of assessment or reassessment under
section 153A;]
(c) an order made under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or
an order refusing to allow the claim made by the assessee
under either of the said sections;
(d) an order made
under section 163 treating the assessee as the agent of a non-resident;
(e) an order made
under sub-section (2) or sub-section (3) of section 170;
(f) an order made
under section 171;
(g) an order made under clause (b) of
sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5)
of section 185 in respect of an
assessment for the assessment year commencing on or before the 1st day of
April, 1992;
(h) an order cancelling
the registration of a firm under sub-section (1) or under sub-section (2) of
section 186 in respect of any assessment for the assessment year commencing on
or before the 1st day of April, 1992 or any earlier assessment year;
[(ha) an order made under section 201;]
(i) an order made under section 237;
(j) an order
imposing a penalty under—
(A) Section 221; or
(B) section 271, section
271A, section 271F, [section 271FB,] section 272AA or section
272BB;
(C) section 272, section 272B or section 273, as
they stood immediately before the 1st day of April, 1989, in respect of an
assessment for the assessment year commencing on the 1st day of April, 1988, or
any earlier assessment years;
[(ja) an order of imposing or
enhancing penalty under sub-section (1A) of section 275;]
(k) an order of assessment made by an
Assessing Officer under clause (c) of section 158BC, in respect of
search initiated under section 132 or books of account, other documents or any
assets requisitioned under section 132A on or after the 1st day of January,
1997;
(l) an order imposing a
penalty under sub-section (2) of section 158BFA;
(m) an order
imposing a penalty under section 271B or section 271BB;
(n) an order made
by a Deputy Commissioner imposing a penalty under section 271C [, section
271CA], section 271D or section 271E;
(o) an order made
by a Deputy Commissioner or a Deputy Director imposing a penalty under section
272A;
(p) an order made
by a Deputy Commissioner imposing a penalty under section 272AA;
(q) an order
imposing a penalty under Chapter XXI;
(r) an order made by an Assessing Officer
other than a Deputy Commissioner under the provisions of this Act in the case
of such person or class of persons, as the Board may, having regard to the
nature of the cases, the complexities involved and other relevant
considerations, direct.
Explanation.—For
the purposes of this sub-section, where on or after the 1st day of October,
1998, the post of Deputy Commissioner has been redesignated
as Joint Commissioner and the post of Deputy Director has been redesignated as Joint Director, the references in this
sub-section for “Deputy Commissioner” and “Deputy Director” shall be
substituted by “Joint Commissioner” and “Joint Director” respectively.
[(1A) Every appeal filed by an assessee
in default against an order under section 201 on or after the 1st day of October, 1998 but before the 1st day of
June, 2000 shall be deemed to have been filed under this section.]
(2)
Notwithstanding anything contained in sub-section (1) of section 246, every appeal under this Act which is pending
immediately before the appointed day, before the Deputy Commissioner (Appeals)
and any matter arising out of or connected with such appeals and which is so
pending shall stand transferred on that date to the Commissioner (Appeals) and
the Commissioner (Appeals) may proceed with such appeal or matter from the
stage at which it was on that day :
Provided that the appellant may demand that before
proceeding further with the appeal or matter, the previous proceeding or any
part thereof be reopened or that he be re-heard.
Explanation.—For the purposes of this section, “appointed day”
means the day appointed by the Central Government by notification in the
Official Gazette.]
247. [Omitted by the Finance Act, 1992, w.e.f. 1-4-1993.]
Appeal by person denying liability to deduct
tax.
248. Any person having in accordance with the
provisions of sections 195 and 200 deducted and paid tax in respect of any sum
chargeable under this Act, other than interest, who denies his liability to
make such deduction, may appeal to the [* * *] [Commissioner (Appeals)] to be
declared not liable to make such deduction.
Form of appeal and limitation.
249. (1) Every appeal under this Chapter shall be
in the prescribed form and shall be verified in the prescribed manner [and shall, in case of an appeal made to the Commissioner
(Appeals) on or after the 1st day of October, 1998, irrespective of the date of
initiation of the assessment proceedings relating thereto be accompanied by a
fee of,—
(i) where the total income
of the assessee as computed by the Assessing Officer
in the case to which the appeal relates is one hundred thousand rupees or less,
two hundred fifty rupees;
(ii) where the total income of the assessee, computed as aforesaid, in the case to which the
appeal relates is more than one hundred thousand rupees but not more than two
hundred thousand rupees, five hundred rupees;
(iii) where the total
income of the assessee, computed as aforesaid, in the
case to which the appeal relates is more than two hundred thousand rupees, one
thousand rupees;]
[(iv) where the subject
matter of an appeal is not covered under clauses (i),
(ii) and (iii), two hundred fifty rupees.]
(2) The
appeal shall be presented within thirty days of the following date, that is to
say,—
(a) where the
appeal relates to any tax deducted under sub-section (1) of section 195, the
date of payment of the tax, or
(b) where the
appeal relates to any assessment or penalty, the date of service of the notice
of demand relating to the assessment or penalty:
[Provided that, where an application
has been made under section 146 for reopening an assessment, the period from
the date on which the application is made to the date on which the order passed
on the application is served on the assessee shall be
excluded, or]
(c) in any other
case, the date on which intimation of the order sought to be appealed against
is served.
[(2A) Notwithstanding anything contained in
sub-section (2), where an order has been made under section 201 on or after the
1st day of October, 1998 but before the 1st day of June, 2000 and the assessee in default has not presented any appeal within the
time specified in that sub-section, he may present such appeal before the 1st
day of July, 2000.]
(3) The [***]
[Commissioner (Appeals)] may admit an appeal after the expiration of the said
period if he is satisfied that the appellant had sufficient cause for not
presenting it within that period.
[(4) No
appeal under this Chapter shall be admitted unless at the time of filing of the
appeal,—
(a) where a return
has been filed by the assessee, the assessee has paid the tax due on the income returned by
him; or
(b) where no return
has been filed by the assessee, the assessee has paid an amount equal to the amount of advance
tax which was payable by him:
Provided that, [in a case falling under clause (b)
and] on an application made by the appellant in this behalf, the [* * *] [Commissioner
(Appeals)] may, for any good and sufficient reason to be recorded in writing,
exempt him from the operation of the provisions of [that clause].]
250. (1) The [* * *] [Commissioner
(Appeals)] shall fix a day and place for the hearing of the appeal, and shall
give notice of the same to the appellant and to the [Assessing] Officer against
whose order the appeal is preferred.
(2) The
following shall have the right to be heard at the hearing of the appeal—
(a) the appellant,
either in person or by an authorised representative;
(b) the [Assessing]
Officer, either in person or by a representative.
(3) The [* *
*] [Commissioner (Appeals)] shall have the power to adjourn the hearing of the
appeal from time to time.
(4) The [* *
*] [Commissioner (Appeals)] may, before disposing of any appeal, make such
further inquiry as he thinks fit, or may direct the [Assessing] Officer to make
further inquiry and report the result of the same to the [* * *] [Commissioner
(Appeals)].
(5) The [* *
*] [Commissioner (Appeals)] may, at the hearing of an appeal, allow the appellant
to go into any ground of appeal not specified in the grounds of appeal, if the [*
* *] [Commissioner (Appeals)] is satisfied that the omission of that ground
from the form of appeal was not wilful or
unreasonable.
(6) The
order of the [* * *] [Commissioner (Appeals)] disposing of the appeal shall be
in writing and shall state the points for determination, the decision thereon
and the reason for the decision.
[(6A) In every appeal, the Commissioner (Appeals),
where it is possible, may hear and decide such appeal within a period of one
year from the end of the financial year in which such appeal is filed before
him under sub-section (1) of section 246A.]
(7) On the
disposal of the appeal, the [* * *] [Commissioner (Appeals)] shall
communicate the order passed by him to the assessee
and to the [Chief Commissioner or Commissioner].
Powers of the 13[* * *] 14[Commissioner (Appeals)].
251. (1) In disposing of an appeal, the [* * *] [Commissioner
(Appeals)] shall have the following powers—
(a) in an appeal
against an order of assessment, he may confirm, reduce, enhance or annul the
assessment [* * *]
(b) in an appeal against an order imposing a
penalty, he may confirm or cancel such order or vary it so as either to enhance
or to reduce the penalty;
(c) in any other
case, he may pass such orders in the appeal as he thinks fit.
(2) The [* *
*] [Commissioner (Appeals)] shall not enhance an assessment or a penalty or
reduce the amount of refund unless the appellant has had a reasonable
opportunity of showing cause against such enhancement or reduction.
Explanation.—In disposing of an appeal, the [* * *] [Commissioner
(Appeals)] may consider and decide any matter arising out of the proceedings in
which the order appealed against was passed, notwithstanding that such matter
was not raised before the [* * *] [Commissioner (Appeals)] by the appellant.
B.—Appeals
to the Appellate Tribunal
252. (1) The Central Government shall constitute
an Appellate Tribunal consisting of as many judicial and accountant members as
it thinks fit to exercise the powers and discharge the functions conferred on
the Appellate Tribunal by this Act.
[(2) A
judicial member shall be a person who has for at least ten years held a
judicial office in the territory of India or who has been a member of the [Indian]
Legal Service and has held a post in Grade [II] of that Service or any
equivalent or higher post for at least three years or who has been an advocate
for at least ten years.
Explanation.—For the purposes of
this sub-section,—
(i) in computing the period during which a person
has held judicial office in the territory of India, there shall be included any
period, after he has held any judicial office, during which the person has been
an advocate or has held the office of a member of a Tribunal or any post, under
the Union or a State, requiring special knowledge of law;
(ii) in computing
the period during which a person has been an advocate, there shall be included
any period during which the person has held judicial office or the office of a
member of a Tribunal or any post, under the Union or a State, requiring special
knowledge of law after he became an advocate.
(2A) An
accountant member shall be a person who has for at least ten years been in the
practice of accountancy as a chartered accountant under the Chartered
Accountants Act, 1949 (38 of 1949), or as a registered accountant under any law
formerly in force or partly as a registered accountant and partly as a
chartered accountant, or who has been a member of the Indian Income-tax
Service, Group A and has held the post of [Additional] Commissioner of
Income-tax or any equivalent or higher post for at least three years.]
[(3) The
Central Government shall appoint the Senior Vice-President or one of the
Vice-Presidents of the Appellate Tribunal to be the President thereof.]
[(4) The Central Government may appoint one or
more members of the Appellate Tribunal to be the Vice-President or, as the case
may be, Vice-Presidents thereof.]
[(4A) The Central Government may appoint one
of the Vice-Presidents of the Appellate Tribunal to be the Senior
Vice-President thereof.]
(5) [The Senior Vice-President or a
Vice-President] shall exercise such of the powers and perform such of the
functions of the President as may be delegated to him by the President by a
general or special order in writing.
Appeals to the Appellate Tribunal.
253. (1) Any assessee
aggrieved by any of the following orders may appeal to the Appellate Tribunal
against such order—
(a) an order passed
by a [Deputy Commissioner (Appeals)] [before the 1st day of October, 1998] [or,
as the case may be, a Commissioner (Appeals)] under [***] [section 154], [***] section
250, [section 271, section 271A or section 272A]; or
[(b) an
order passed by an Assessing Officer under clause (c) of section 158BC,
in respect of search initiated under section 132 or books of account, other
documents or any assets requisitioned under section 132A, after the 30th day of
June, 1995, but before the 1st day of January, 1997; or]
[(ba) an order passed by an Assessing Officer under
sub-section (1) of section 115VZC; or]
(c) an order passed
by a Commissioner [under section 12AA or] under section 263 [or under section
271] [or under section 272A] [***] or an order passed by him under section 154
amending his order under section 263] [or an order passed by a Chief
Commissioner or a Director General or a Director under section 272A.]
(2) The
Commissioner may, if he objects to any order passed by a [Deputy Commissioner
(Appeals)] [before the 1st day of October, 1998] [or, as the case may be, a
Commissioner (Appeals)] under [section 154 or] section 250, direct the [Assessing]
Officer to appeal to the Appellate Tribunal against the order.
(3) Every
appeal under sub-section (1) or sub-section (2) shall be filed within sixty
days of the date on which the order sought to be appealed against is
communicated to the assessee or to the Commissioner,
as the case may be :
[Provided
that in respect of any appeal under clause (b) of sub-section (1), this
sub-section shall have effect as if for the words “sixty days”, the words
“thirty days” had been substituted.]
(4) The [Assessing]
Officer or the assessee, as the case may be, on
receipt of notice that an appeal against the order of the [Deputy Commissioner
(Appeals)] [or, as the case may be, the Commissioner (Appeals)] has been
preferred under sub-section (1) or sub-section (2) by the other party, may,
notwithstanding that he may not have appealed against such order or any part
thereof; within thirty days of the receipt of the notice, file a memorandum of
cross-objections, verified in the prescribed manner, against any part of the
order of the [Deputy Commissioner (Appeals)] [or, as the case may be, the
Commissioner (Appeals)], and such memorandum shall be disposed of by the
Appellate Tribunal as if it were an appeal presented within the time specified
in sub-section (3).
(5) The
Appellate Tribunal may admit an appeal or permit the filing of a memorandum of
cross-objections after the expiry of the relevant period referred to in
sub-section (3) or sub-section (4), if it is satisfied that there was
sufficient cause for not presenting it within that period.
[(6) An
appeal to the Appellate Tribunal shall be in the prescribed form and shall be
verified in the prescribed manner and shall, in the case of an appeal made, on
or after the 1st day of October, 1998, irrespective of the date of initiation
of the assessment proceedings relating thereto, be accompanied by a fee of,—
(a) where the total
income of the assessee as computed by the Assessing
Officer, in the case to which the appeal relates, is one hundred thousand
rupees or less, five hundred rupees,
(b) where the total income of the assessee, computed as aforesaid, in the case to which the
appeal relates is more than one hundred thousand rupees but not more than two
hundred thousand rupees, one thousand five hundred rupees,
(c) where the total
income of the assessee, computed as aforesaid, in the
case to which the appeal relates is more than two hundred thousand rupees, one
per cent of the assessed income, subject to a maximum of ten thousand rupees,
[(d) where
the subject matter of an appeal relates to any matter, other than those
specified in clauses (a), (b) and (c), five hundred
rupees:]
Provided that no such
fee shall be payable in the case of an appeal referred to in sub-section (2) or
a memorandum of cross-objections referred to in sub-section (4).
(7) An
application for stay of demand shall be accompanied by a fee of five hundred
rupees.]
254. (1) The Appellate Tribunal may, after giving
both the parties to the appeal an opportunity of being heard, pass such orders
thereon as it thinks fit.
(1A) [***]
(2) The
Appellate Tribunal may, at any time within four years from the date of the
order, with a view to rectifying any mistake apparent from the record, amend
any order passed by it under sub-section (1), and shall make such amendment if
the mistake is brought to its notice by the assessee
or the [Assessing] Officer :
Provided that an amendment which has the effect of
enhancing an assessment or reducing a refund or otherwise increasing the
liability of the assessee, shall not be made under
this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard :
[Provided further that any application filed by the assessee in this sub-section on or after the 1st day of
October, 1998, shall be accompanied by a fee of fifty rupees.]
[(2A) In every appeal, the Appellate Tribunal,
where it is possible, may hear and decide such appeal within a period of four
years from the end of the financial year in which such appeal is filed under
sub-section (1) [or sub-section (2)] of section 253 :
[Provided that where an order of stay is made in any proceedings relating to an
appeal filed under sub-section (1) of section 253, the Appellate Tribunal shall
dispose of the appeal within a period of one hundred and eighty days from the
date of such order :
Provided further that if such appeal is not so disposed of
within the period specified in the first proviso, the stay order shall stand
vacated after the expiry of the said period.]
(2B) The cost of any
appeal to the Appellate Tribunal shall be at the discretion of that Tribunal.]
(3) The Appellate
Tribunal shall send a copy of any orders passed under this section to the assessee and to the [[***] Commissioner].
(4) [Save
as provided in the National Tax Tribunal Act, 2005], orders passed
by the Appellate Tribunal on appeal shall be final.
Procedure of Appellate Tribunal.
255. (1) The powers and functions of the Appellate
Tribunal may be exercised and discharged by Benches constituted by the
President of the Appellate Tribunal from among the members thereof.
(2) Subject
to the provisions contained in sub-section (3), a Bench shall consist of one
judicial member and one accountant member.
(3) The
President or any other member of the Appellate Tribunal authorised
in this behalf by the Central Government may, sitting singly, dispose of any
case which has been allotted to the Bench of which he is a member and which
pertains to an assessee whose total income as
computed by the [Assessing] Officer in the case does not exceed [five hundred
thousand rupees], and the President 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.
(4) 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 Appellate 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.
(5) 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.
(6) The
Appellate Tribunal shall, for the purpose of discharging its functions, have
all the powers which are vested in the income-tax authorities referred to in section
131, and any proceeding before the Appellate Tribunal shall be deemed to be a
judicial proceeding within the meaning of sections 193 and 228 and for the
purpose of section 196 of the Indian Penal Code (45 of 1860), and the Appellate
Tribunal shall be deemed to be a civil court for all the purposes of section
195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).
[***]
Statement
of case to the High Court.
256. [Omitted by the National Tax Tribunal Act,
2005, with effect from a date yet to be notified.]
Statement of case to Supreme Court in certain cases.
257. If, on an application made [against an order
made under section 254 before the 1st day of October, 1998,] under section 256 the
Appellate Tribunal is of the opinion that, on account of a conflict in the
decisions of High Courts in respect of any particular question of law, it is
expedient that a reference should be made direct to the Supreme Court, the
Appellate Tribunal may draw up a statement of the case and refer it through its
President direct to the Supreme Court.
Power of
High Court or Supreme Court to require statement to be amended.
258. [Omitted by the National Tax
Tribunal Act, 2005, with effect from a date yet to be notified.]
Case
before High Court to be heard by not less than two judges.
259. [Omitted by the National Tax
Tribunal Act, 2005, with effect from a date yet to be notified.]
[Effect
to the decisions of Supreme Court and of the National Tax Tribunal.
260. (1) The Supreme Court upon hearing any
reference made to it by the Appellate Tribunal under section 257 shall decide
the question of law raised therein, and shall deliver its judgment thereon containing the grounds on which such
decision is founded, and a copy of the judgment shall be sent under the seal of
the Court and the signature of the Registrar to the Appellate Tribunal which
shall pass such orders as are necessary to dispose of the case conforming to
such judgment.
(2) Where
the National Tax Tribunal delivers a judgment in an appeal filed before it or
in any matter transferred to it under the National Tax Tribunal Act, 2005,
effect shall be given to the order of that Tribunal by the Assessing Officer on
the basis of certified copy of the judgment.
(3) The
cost of any reference to the Supreme Court which shall not include the fee for
making the reference shall be at the discretion of the Court.]
[CC.—Appeals to High Court
260A. (1) An appeal shall lie to the High Court from
every order passed in appeal by the Appellate Tribunal [before the
date of establishment of the National Tax Tribunal], if the High
Court is satisfied that the case involves a substantial question of law
(2) [The
Chief Commissioner or the 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 Chief
Commissioner or Commissioner];
(b) [***]
(c) in the form of
a memorandum of appeal precisely stating therein the substantial question of
law involved.
(3) Where
the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
(4) The
appeal shall be heard only on the question so formulated, and the respondents
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question :
Provided that nothing in this sub-section shall be
deemed to 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.
(5) 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.
(6) The High
Court may determine any issue which—
(a) has not been
determined by the Appellate Tribunal; or
(b) has been
wrongly determined by the Appellate Tribunal, by reason of a decision on such
question of law as is referred to in sub-section (1).
[(7) Save as otherwise provided in this Act,
the provisions of the Code of Civil Procedure, 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.]
Case
before High Court to be heard by not less than two Judges.
260B. (1) When an appeal has been filed before the
High Court under section 260A, it shall be heard by a bench of not less than
two Judges of the High Court, and shall be decided in accordance with 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
according to the opinion of the majority of the Judges who have heard the case
including those who first heard it.]
D.—Appeals to the Supreme Court
261. An appeal shall lie to the Supreme Court from
any judgment of the High Court delivered [before the establishment of
the National Tax Tribunal] on a reference made under section 256 [against
an order made under section 254 before the 1st day of October, 1998 or an
appeal made to High Court in respect of an order passed under section 254 on or
after that date] in any case which the High Court certifies to be a fit one for
appeal to the Supreme Court.
262. (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 261 as they apply in
the case of appeals from decrees of a High Court :
Provided that nothing in this section shall be deemed
to affect the provisions of sub-section (1) of section 260 or section 265.
(2) The
costs of the appeal shall be in 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 260 in the case of a judgment of the High
Court.
E.—Revision by the Commissioner
Revision of orders prejudicial to revenue.
263. (1) The Commissioner may call for and examine
the record of any proceeding under this Act, and if he considers that any order
passed therein by the [Assessing] Officer is erroneous in so far as it is
prejudicial to the interests of the revenue, he may, after giving the assessee
an opportunity of being heard and after making or causing to be made such
inquiry as he deems necessary, pass such order thereon as the circumstances of
the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
[Explanation.—For the removal of doubts, it is hereby declared that, for
the purposes of this sub-section,—
(a) an order passed
[on or before or after the 1st day of June, 1988] by the Assessing Officer
shall include—
(i) an order of assessment
made by the Assistant Commissioner [or Deputy Commissioner] or the Income-tax
Officer on the basis of the directions issued by the [Joint] Commissioner under
section 144A;
(ii) an order made by the [Joint] Commissioner in exercise of the powers
or in the performance of the functions of an Assessing Officer conferred on, or
assigned to, him under the orders or directions issued by the Board or by the
Chief Commissioner or Director General or Commissioner authorised
by the Board in this behalf under section 120;
(b) “record” [shall
include and shall be deemed always to have included] all records relating to
any proceeding under this Act available at the time of examination by the
Commissioner;
(c) where any order referred to in this
sub-section and passed by the Assessing Officer had been the subject matter of
any appeal [filed on or before or after the 1st day of June, 1988], the powers
of the Commissioner under this sub-section shall extend [and shall be deemed
always to have extended] to such matters as had not been considered and decided
in such appeal.]
[(2) No
order shall be made under sub-section (1) after the expiry of two years from
the end of the financial year in which the order sought to be revised was
passed.]
(3)
Notwithstanding anything contained in sub-section (2), an order in revision
under this section may be passed at any time in the case of an order which has
been passed in consequence of, or to give effect to, any finding or direction
contained in an order of the Appellate Tribunal, [National Tax
Tribunal,] the High Court or the Supreme Court.
Explanation.—In computing the
period of limitation for the purposes of sub-section (2), the time taken in
giving an opportunity to the assessee to be reheard
under the proviso to section 129
and any period during which any proceeding under this section is stayed by an
order or injunction of any court shall be excluded.
264. (1) In the case of any order other than an
order to which section 263 applies passed by an authority subordinate to him,
the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any
proceeding under this Act in which any such order has been passed and may make
such inquiry or cause such inquiry to be made and, subject to the provisions of
this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit.
(2) The
Commissioner shall not of his own motion revise any order under this section if
the order has been made more than one year previously.
(3) In the
case of an application for revision under this section by the assessee, the application must be made within one year from
the date on which the order in question was communicated to him or the date on
which he otherwise came to know of it, whichever is earlier:
Provided that the Commissioner may, if he is satisfied
that the assessee was prevented by sufficient cause
from making the application within that period, admit an application made after
the expiry of that period.
(4) The
Commissioner shall not revise any order under this section in the following
cases—
(a) where an appeal against the order lies
to the [Deputy Commissioner (Appeals)] [or to the Commissioner (Appeals)] or to
the Appellate Tribunal but has not been made and the time within which such
appeal may be made has not expired, or, in the case of an appeal [to the
Commissioner (Appeals) or] to the Appellate Tribunal, the assessee
has not waived his right of appeal; or
(b) where the order
is pending on an appeal before the [Deputy Commissioner (Appeals)]; or
(c) where the order
has been made the subject of an appeal [to the Commissioner (Appeals) or] to
the Appellate Tribunal.
(5) Every
application by an assessee for revision under this
section shall be accompanied by a fee of [five hundred] rupees.
[(6) On
every application by an assessee for revision under
this sub-section, made on or after the 1st day of October, 1998, an order shall
be passed within one year from the end of the financial year in which such
application is made by the assessee for revision.
Explanation.—In computing the
period of limitation for the purposes of this sub-section, the time taken in
giving an opportunity to the assessee to be re-heard
under the proviso to section 129 and any period during which any proceeding
under this section is stayed by an order or injunction of any court shall be
excluded.
(7)
Notwithstanding anything contained in sub-section (6), an order in revision
under sub-section (6) may be passed at any time in consequence of or to give
effect to any finding or direction contained in an order of the Appellate
Tribunal, [National Tax Tribunal,] the High Court or the
Supreme Court.]
Explanation
1.—An
order by the Commissioner declining to interfere shall, for the purposes of
this section, be deemed not to be an order prejudicial to the assessee.
Explanation
2.—For
the purposes of this section, the [Deputy Commissioner (Appeals)] shall be
deemed to be an authority subordinate to the Commissioner.
F.—General
Tax to be paid notwithstanding reference,
etc.
265. Notwithstanding that a reference has been
made to the High Court or the Supreme Court or an appeal has been preferred to
the Supreme Court, tax shall be payable in accordance with the assessment made
in the case.
Execution for costs awarded by Supreme
Court.
266. 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.
267. Where as a result of an appeal under section
246 [or section 246A] or section 253, any change is made in the assessment of a
body of individuals or an association of persons or a new assessment of a body
of individuals or an association of persons is ordered to be made, the [* * *]
Commissioner (Appeals) or the Appellate Tribunal, as the case may be, shall
pass an order authorising the Assessing Officer
either to amend the assessment made on any member of the body or association or
make a fresh assessment on any member of the body or association.]
Exclusion of time taken for copy.
268. 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 furnished with a copy of the order when the notice of the order was
served upon him, the time requisite for obtaining a copy of such order, shall
be excluded.
Definition of “High Court”.
269. In this Chapter,—
“High Court”
means—
(i) in relation to any
State, the High Court for that State ;
[(ii) in relation to
the Union territory of Delhi, the High Court of Delhi ;
(iia) [*
* *]]
(iii) [* * *]
(iv) in relation to
the Union territory of the Andaman and Nicobar
Islands, the High Court at Calcutta ;
(v) in relation to
the Union territory of [Lakshadweep], the High Court
of Kerala ;
[(va) in relation to the Union territory of Chandigarh, the High Court of Punjab and Haryana ;]
[(vi) in relation to the
Union territories of Dadra and Nagar
Haveli and [* * *] Daman and Diu,
the High Court at Bombay ; and
(vii) in relation to
the Union territory of Pondicherry, the High Court at
Madras.]