The pendency of appeals
at various judicial fora has been a grave concern for the taxpayers
and tax administrators. The Government in recent times has taken steps to
reduce the pendency by increasing the tax-effect thresholds for
Revenue's appeals. The Finance Act, 2022 has introduced Section
158AB in furtherance of the Government’s pursuit of minimising
litigation.
Background
Explaining the provisions of section 158AA and section 158AB
Clause 51 seeks to amend section 158AA of the Act relating to
procedure when in an appeal by revenue an identical question of law is pending
before Supreme Court.
It is proposed to insert a proviso in sub-section (1) in the said
section to provide that no direction shall be given under this sub-section on
or after the 1st day of April, 2022.
This amendment will take effect from 1st April, 2022.
Clause 52 seeks to insert a new section 158AB in the Act relating
to procedure where an identical question of law is pending before the High
Courts or Supreme Court.
The Finance Act, 2022, with effect from 01.04.2022 has inserted Section 158AB which provides that in a case of an assessee wherein the question of law arising from an order of Commissioner (Appeals) or the ITAT for a particular assessment year is identical to a question of law that is pending before jurisdictional High Court or the Supreme Court in:
(a) assessee’s own case for any other assessment year; or
(b) any other assessee’s case for any assessment year,
Then to avoid duplicity of appeal before judicial forums, based on the
communication from Principal Commissioner or Commissioner, the Assessing
Officer shall not file an appeal before the jurisdictional High Court or the
ITAT. The Assessing Officer shall instead file an application to the
jurisdictional High Court or the ITAT that the appeal on the question of law in
the assessee’s case may be filed when the decision on such question of law, in
the other case, becomes final.
Text
of Section 158AB
[1][Procedure where an
identical question of law is pending before High Courts or Supreme Court
158AB.
(1) Notwithstanding 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 assessment 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 assessment year; or
(ii) in the case of any other assessee for any
assessment year; and
(b) such question is pending before the
jurisdictional High Court under section 260A or the Supreme Court in an appeal
under section 261 or in a special leave petition under article 136 of the
Constitution, against the order of the Appellate Tribunal or the jurisdictional
High Court, as the case may be, which is in favour of such assessee (such case
being herein referred to as the other case),
the
collegium may, decide and inform the Principal Commissioner or Commissioner not
to file any appeal, at this stage, to the Appellate Tribunal under sub-section
(2) of section 253 or to the jurisdictional High Court under sub-section (2) of
section 260A in the relevant case against the order of the Commissioner
(Appeals) or the Appellate Tribunal, as the case may be.
(2)
The Principal Commissioner or the Commissioner shall, on receipt of a
communication from the collegium under sub-section (1), notwithstanding
anything contained in sub-section (3) of section 253 or clause (a) of
sub-section (2) of section 260A, direct the Assessing Officer to make an
application to the Appellate Tribunal or the jurisdictional High Court, as the
case may be, in such form as may be prescribed within a period of one hundred
and twenty days from the date of receipt of the order of the Commissioner (Appeals)
or of the Appellate Tribunal, as the case may be, stating that an appeal on the
question of law arising in the relevant case may be filed when the decision on
such question of law becomes final in the other case.
(3)
The Principal Commissioner or Commissioner shall direct the Assessing Officer
to make an application under sub-section (2) only if an acceptance is received
from the assessee to the effect that the question of law in the other case is
identical to that arising in the relevant case; and in case no such acceptance
is received, the Principal Commissioner or Commissioner shall, notwithstanding
anything contained in sub-section (3) of section 253 or clause (a) of
sub-section (2) of section 260A, proceed in accordance with the provisions
contained in sub-section (2) of section 253 or in clause (c) of sub-section (2)
of section 260A.
(4)
Where the order of the Commissioner (Appeals) or the order of the Appellate
Tribunal, as the case may be, referred to in sub-section (1) is not in
conformity with the final decision on the question of law in the other case, as
and when such order is received, the Principal Commissioner or Commissioner may
direct the Assessing Officer to appeal to the Appellate Tribunal or the
jurisdictional High Court, as the case may be, against such order and save as
otherwise provided in this section all other provisions of Part B and Part CC
of Chapter XX shall apply accordingly.
(5)
Every appeal under sub-section (4) shall be filed within a period of sixty days
to the Appellate Tribunal or one hundred and twenty days to the High Court as
the case may be, from the date on which the order of the jurisdictional High
Court or the Supreme Court in the other case is communicated to the Principal
Commissioner or the Commissioner (having jurisdiction over the relevant case),
in accordance with the procedure specified by the Board in this behalf.
Explanation.
- For the purposes of this section, “collegium” means a collegium comprising of
two or more Chief Commissioners or Principal Commissioners or Commissioners, as
may be specified by the Board in this behalf.]
KEY NOTE
1. Inserted by the Finance Act, 2022, with effect
from 01.04.2022.
Comparatives between deleted Section 158AA and the newly introduced section 158AB
|
Particulars |
As
per Section 158AA |
As
per Section 158AB |
|
Authority
to decide ‘identical question of law’ [Directing
Authority to Assessing Officer |
Commissioner
or Principal Commissioner, suo moto. |
Commissioner
or Principal Commissioner, on directions received from “Collegium”
(Collegium
comprising of two or more Chief Commissioners or Principal Commissioners or
Commissioners) |
|
Appellate
forum where appeal is pending |
Supreme
Court |
Jurisdictional
High Court or Supreme Court |
|
Reference
to Case Pending |
When
the case is decided by CIT(A) in the favour of assessee and Revenue needs to
file an appeal with ITAT |
When
the case is decided by CIT(A) or ITAT in the favour of assessee and Revenue
needs to file an appeal with ITAT against the order of CIT(A) or with High
Court against the order of ITAT. |
|
Whose
Appeal is pending |
Assessee
only |
Assessee
or any other person |
|
Applicability
of Section |
When
the case is decided by CIT(A) in the favour of assessee and Revenue needs to
file an appeal with ITAT |
When
the case is decided by CIT(A) or ITAT in the favour of assessee and Revenue
needs to file an appeal with ITAT against the order of CIT(A) or with High
Court against the order of ITAT. |
|
Time
Limit for application to ITAT / High Court |
60 Days from the date of CIT Appeals order |
§
60 Days from the date of CIT Appeals order §
120 Days from the date of ITAT order |
|
Form
for Application |
Form 8 |
Form 8A |
|
Time
Limit for Appeal to ITAT / High Court |
60 Days from the order of Supreme Court
pronounced in the case of assessee where question of law was pending. |
60
Days from the order of High Court or Supreme Court pronounced in the case of
same assessee or any other assessee of where question of law was pending. |
Manner for constitution of collegium to decide deferment of appeals under Section 158AB
The Finance Act, 2022 inserted a Section 158AB to provide for deferment of appeal in the case of an assessee wherein the question of law is identical to a question of law that is pending before the jurisdictional High Court or the Supreme Court. To decide on such deferment, the CBDT vide order letter F. No. 370133/13/2022-TPL, dated 28.09.2022 has specified the manner for the constitution of the collegium. The Collegium shall comprise three members who are officers of the rank of Pr. CIT or CIT.
ORDER
Subject : Order specifying the Collegium
- Explanation to section 158AB of the Income-tax Act, 1961 - regarding
In
exercise of powers conferred under the Explanation to section 158AB of the
Income-tax Act, 1961 (the Act), the Central Board of Direct Taxes (read as
‘Board’) hereby specifies that for the purpose of deciding deferment of appeals
before the Appellate Tribunal or the jurisdictional High Court by the Assessing
Officer under section 158AB of the Act, a Collegium shall be constituted as
under:- (i)
|
S.No. |
Appeals in Jurisdiction |
Collegium to
be Constituted By |
|
1. |
International
tax and Transfer Pricing |
Pr. Chief Commissioner of Income-tax
(International tax and Transfer Pricing) |
|
2. |
Exemption
Charge |
Pr. Chief
Commissioner of Income-tax (Exemptions) |
|
3. |
Central
Charges |
Chief
Commissioner of Income-tax (Central) or DGIT(Inv) - [Jurisdictional] |
|
4. |
All other
cases |
Pr. Chief
Commissioner of Income-tax (CCA) - [Jurisdictional] |
(ii) The Collegium shall comprise of
three members who are officers of the rank of Principal Commissioner of
Income-tax (PCIT) or Commissioner of Income-tax (CIT);
(iii) The members shall be:-
(a)
the PCIT or CIT having jurisdiction over
the case in which defennent of appeal is to be decided under section 158AB(I);
and
(b) two other officers of the rank of
PCIT or CIT nominated by respective Pr.CCIT/CCITIDGIT mentioned in the table in
(i) above;
(iv) The Collegium may co-opt one officer
of the rank of PCIT or CIT ifit so decides;
(v) The seniormost member of the Collegium
shall act as the Chairperson of the Collegium.
2. This order comes into effect from the
date of its issue.
CBDT notifies Form 8A to make application under section 158AB to defer filing of appeal before ITAT & High Court on identical issues
CBDT, vide Notification No.
83/2022 dated 12.07.2022 notifies new Rule 16 and Form No. 8A pursuant to
Section 158AB; As per the Rule, the Assessing Officer is required to file Form
No. 8A for deferring the filling of appeal before the ITAT or jurisdictional
High Court by furnishing the particulars as prescribed in the Form.
Application under section 158AB to defer filing of appeal before the Appellate Tribunal or the jurisdictional High Court [Rule 16]
The application referred to
in section 158AB(2), required to be made before the Appellate Tribunal or the
jurisdictional High Court, as the case may be, shall be made in Form No. 8A by
the Assessing Officer.
Text of Rule 16
Application under section
158AB to defer filing of appeal before the Appellate Tribunal or the
jurisdictional High Court.
16. The application referred to in sub-section (2) of section 158AB, required to be made before the Appellate Tribunal or the jurisdictional High Court, as the case may be, shall be made in Form No. 8A by the Assessing Officer
Decision under section 158AB is to be taken by a Collegium comprising of two or more CCIT or PCIT or CIT;
·
Section 158AB is to apply
when a question of law in a proposed appeal, is identical to question of law in
case of the very same assessee or in case of any other assessee;
· Such question should be pending before the jurisdictional High Court u/s 260A of the Act or before the Supreme Court in an appeal u/s 261 of the Act or in a Special Leave Petition under Article 136 of the Constitution of India and such appeal/ petition has been filed by the Department;
· In the above given facts, the Collegium may decide and inform PCIT/ CIT concerned to not file an appeal to ITAT or HC against the order of CIT(A) or ITAT respectively, if the question of law is identical;
· On receipt of such communication from the Collegium, the PCIT/ CIT concerned shall direct the AO to file an application with ITAT or HC within the time limit to file appeal in the prescribed form and manner, instead of filing appeal;
· However, such an application is to be filed only if acceptance to this effect is received from the assessee concerned within 30 days from the date of communication to the Assessee;
· Further, if the question of law is decided by the High Court or the Supreme Court in favour of the Department, then appeal is to be filed within 60 days from the date of communication of such order to the PCIT/ CIT concerned in cases where an application has been made u/s 158AB of the Act.
Form No. 8A – Rule 16 of Income tax Rules
In order to prescribe the relevant form, the Board has amended the
Rules vide Income-tax (22nd Amendment) Rules, 2022 and notified Form No. 8A in
which the application shall be made by the Assessing Officer before the ITAT or
jurisdictional High Court as per the provisions of section 158AB of the Act.
Form No. 8A requires the particulars related to the question of law for which
appeal is deferred and the details of other cases or cases on the basis of
which appeal is deferred.
Form 8A seeks the following details from the Assessing Officer:
(a) Appellant’s Personal
Information;
(b) Respondent’s Personal
Information;
(c) Case Details, such as
Assessment Year, total income declared, details of order
against which appeal is
deferred, etc.;
(d) Questions of Law for which
appeal is deferred;
(e) Details of other cases on the
basis of which appeal is deferred; and
(f) Due date for filing of
application as per section 158AB(2).
Form No. 8A
[See
rule 16]
In
the High Court of ……… or
Income-tax
Appellate Tribunal…..
(strike
out whichever is inapplicable)
|
1. |
Appellant’s
Personal Information |
Name/ designation
of the Appellant (as applicable) |
|
|||
|
Complete
address for sending notices |
|
|||||
|
State |
|
|||||
|
Pin
code |
|
|||||
|
Phone
No. with STD code/ Mobile No. |
|
|||||
|
Email
Address |
|
|||||
|
2. |
Respondent’s
Personal Information |
Name/
designation of the Respondent (as applicable) |
|
|||
|
PAN
(if available) |
|
|||||
|
TAN
(if available) |
|
|||||
|
Complete
address for sending notices |
|
|||||
|
State |
|
|||||
|
Pin
code |
|
|||||
|
Phone
No. with STD code/ Mobile No. |
|
|||||
|
Email
Address (if available) |
|
|||||
|
3. |
Case
Details |
(a) |
Assessment
year in connection with which the appeal is deferred |
|
||
|
(b) |
Total
income declared by the assessee for the assessment year referred to in item
(a) |
|
||||
|
(c) |
Details
of the order against which appeal is deferred |
|
||||
|
(i) |
Section
and sub-section under which order is passed |
|
||||
|
(ii) |
Date
of order |
|
||||
|
(iii) |
Date
of service or communication of the order |
|
||||
|
(d) |
Income-tax
authority or the Appellate Tribunal passing the order against which appeal is
deferred |
|
||||
|
(e) |
The State
and District in which the jurisdictional Assessing Officer is located |
|
||||
|
(f) |
Section
and sub-section under which the original order is passed |
|
||||
|
4. |
Questions
of Law for which appeal is deferred |
|
Questions
of Law |
Relevant
Section and sub-section of the Act |
|
|
|
|
|
|
(a) |
|
|
|
|
|
|
|
(b) |
|
|
|
|
|
|
|
(c) |
|
|
|
|
|
|
|
Total
tax effect |
|
|
|
|
5. |
Details
of other case/ cases on the basis of which appeal is deferred |
(a) |
Name
of the assessee |
|
||
|
(b) |
Court
before which the appeal in the other case is pending |
|
||||
|
(c) |
Question
of law in the other case on the basis of which appeal in the instant case is
deferred: - |
|
||||
|
|
(a) |
|
|
|||
|
|
(b) |
|
|
|||
|
|
(c) |
|
|
|||
|
6. |
Due
date for filing of application as per sub-section (2) of section 158AB |
|
|
|
||
Explanation: For the purposes of this rule and form No. 8A, the words ― “relevant
case” and - “other case” shall have the
same meaning as assigned to them in section 158AB of the Act.
It is hereby certified that –
(a) the question(s) of law mentioned in
item 4, arising in the case of the assessee for assessment year ___________
is/are identical with a question of law arising in:-
a. his case for the assessment year
___________
b. the case of
__________ for the assessment year ___________ ,
(b) the
question(s) is/are pending before the jurisdictional High Court under section
260A or the Supreme Court in an appeal under section 261 or the Supreme Court
in a Special Leave Petition under article 136 of the Constitution against the
order of the Appellate Tribunal/ jurisdictional High Court as mentioned in item
5 above;
(c) the appeal on
the question(s) of law mentioned in item 4 shall be filed in accordance with
the provisions of sub-section (4) of section 158AB of the Act.
Signed
(Appellant)
Name:_____________
Designation:_________
Form of Verification
I, ______________, the appellant, do hereby declare that what is stated above is true to the best of my information and belief.
Place:______
Signature:_________________
Date:_______
Name:_______________
Designation:______________
Notes: If the
space provided is found insufficient, separate enclosures may be used for the
purpose.
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