High Court (HC) – Limited Third Appeal and Writ Jurisdiction
An income tax appeal lies before the jurisdictional High Court from every order passed in appeal by the Income Tax Appellate Tribunal (ITAT), if the High Court is satisfied that the case involves a substantial question of law.
The said appeal may be filed by the Principal Chief Commissioner/Chief Commissioner or the Principal Commissioner or Commissioner or an Assessee aggrieved by any order passed by the ITAT.
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Substantial Question of Law
The said appeal is filed in the form of a ‘Memorandum of Appeal’ stating precisely therein, the substantial question of law so involved. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
The appeal shall be heard only on the question(s) so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question(s).
However, nothing takes away or abridges the power of the said 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.
Time Limitation and Condonation of Delay
An income tax appeal must be filed before the said High Court within 120 days from the date on which the order appealed against is received by the Assessee or the Principal Chief Commissioner etc.
The concerned High Court may admit an appeal after the expiry of the above said period if it is satisfied that there was sufficient cause for not filing the same within that period.
The appeal after filing before the jurisdictional High Court through its registry, is listed thereafter for admission. On the listed date, the appellant is generally heard briefly on the matter by the relevant Bench of the concerned High Court and a Notice is issued to the opposite (respondent) party. The said Notice informs the said opposite party of the appeal as filed and gives it/them an opportunity to submit/argue to the contrary, including disallowance or rejection of the said appeal.
On the date fixed for such arguments, the said appeal is either admitted with substantial question(s) of law framed for adjudication or is dismissed at the threshold as not maintainable. Admittance of the appeal then sets its hearing into motion. An income tax appeal before the concerned High Court generally follows the provisions of the Code of Civil Procedure 1908 and the relevant High Court Rules (which may vary between different High Courts) relating to appeals before it, unless the Income Tax Act 1961 (the Act) provides otherwise.
Adjudication and Judgement
The concerned High Court decides the question(s) of law so formulated and its judgment thereon containing the grounds on which such decision is founded.
In its adjudication of the relevant matter, the concerned High Court may determine any issue which—
- Has not been determined by the concerned ITAT or
- Which has been wrongly determined by the ITAT, by reason of a decision on the above mentioned question(s) of law
The authority to issue a Writ has been provided to the High Courts via the provisions of the relevant Article of the Constitution of India. However, access to such jurisdiction is not automatic and the same may be denied, even in circumstances where the same may be legally justifiable, if an alternative remedy exists that may do justice to the petitioner concerned or where the Writ relief has been lost through delay or relevant acts/omissions of the said petitioner.
In general, the petitioner can file a Writ petition with the concerned High Court if the income tax authority concerned has exercised powers, passed (or refused to pass) orders or taken steps (through acts or abstenance from acts/omissions) against the said petitioner, when the same is either beyond the lawful powers provided or assigned by law to such authority or exercised etc. in the absence of any such lawful power or authority.
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