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Income Tax Appeal to High Court  and Supreme Court of India -Section 260A and Section 261 of Income Tax Act, 1961

 

 

An assessee aggrieved with the order of Income Tax Appellate Tribunal (ITAT) can file Income Tax Appeal with the High Court and Then Supreme Court of India. Section 260A of Income Tax Act 1961 has provision for direct appeal to the High Court against the orders of the Appellate Tribunal. To file appeal with the High Court, the case should be qualified which involves a substantial question of law.  So appeal cannot be filed against the order of ITAT, if the case does not involve any question of Law. Further, after the establishment of National Tax Tribunal (NTT), the appeal should be filed with NTT.

 

Appeal to the High Court

As per  Section 260A(1) of Income Tax Act, 1961 an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal up to the date of establishment of the National Tax Tribunal (NTT), if the High Court is satisfied that the case involves a substantial question of law. If the High Court is so satisfied, it shall formulate that question. After the establishment of the National Tax Tribunal (NTT), the appeal shall lie to the National Tax Tribunal (NTT).

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 under this section.

 

Form for appeal

The Form of appeal shall be in the like a memorandum of appeal, precisely stating in it the substantial question of law involved.

 

Time limit for filing Income Tax Appeal with High Court

Within 120 days from date on which the order appealed against is received by the assessee, or the Chief Commissioner or Commissioner.

 

Power of High Court to condone the delay and admit appeal after expiry of 120 days

If it is satisfied that there was sufficient cause for not filing the appeal within that period of 120 days the High Court has the power to condone the delay and admit an appeal after expiry of the period of 120 days.

 

Matters on which appeal can be heard

The appeal shall be heard only on the question formulated. However, the respondent shall at the hearing of appeal, be allowed to argue that the case does not involve such question. Further, the Court shall also have power to hear the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. However, such power shall be exercised by the Court only after recording the reasons for hearing such other question.

 

Further, 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 section 260A(1).

 

Judgment from High Court

After the appeal is heard, the High Court shall decide the question of law so formulated and deliver such judgment thereon, but such judgment should contain the grounds on which such decision is founded.

 

Award of costs

The High Court is empowered to award such costs as it deems fit.

 

Code of Civil Procedure

Unless otherwise provided in this Act, the Code of Civil Procedure, 1908, relating to appeals to the High Court, shall apply to appeals under this section.

 

Case before High Court to be heard by not less than two judges -Section 260B of Income tax Act, 1961

 

Minimum Strength of the bench hearing the appeal

The appeal shall be heard by a bench of not less than 2 judges of the High Court.

 

Majority Decision

The appeal shall be decided in accordance with the opinion of the judges or the majority, if any. Where there is no such majority, the point of law upon which the judges differ shall be referred to 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.

 

Appeal to the Supreme Court -Section 261 of Income Tax Act, 1961

As per section 261 of Income tax Act, 1961, an appeal shall lie to the Supreme Court from any judgment of the High Court delivered before the establishment of the National Tax Tribunal (NTT), in a case which the High Court certifies to be a fit one for appeal to the Supreme Court. Thereafter, an appeal shall lie to the Supreme Court from any judgment of the National Tax Tribunal (NTT) as per the provisions of the National Tax Tribunal Act, 2005. The provisions of the Code of Civil Procedure, 1908 in regard to appeal shall apply in the case of all appeals to the Supreme Court in the same manner as in the case of all appeals from decrees of a High Court. The cost of appeal shall be decided at the discretion of the Supreme Court. Where the judgment of a High Court is varied in the appeal, effect should be given to the order of the Supreme Court in the same manner as provided in the case of a judgment of the High Court.

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