Search Results For: maintainability of appeal


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DATE: August 10, 2017 (Date of pronouncement)
DATE: August 17, 2017 (Date of publication)
AY: -
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CITATION:
S. 260A: Right of appeal is not a matter of procedure. It is a substantive right. This right gets vested in the litigants at the commencement of the lis and such a vested right cannot be taken away or cannot be impaired or imperilled or made more stringent or onerous by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention to interfere with or impair or imperil a vested right cannot be presumed unless such intention be clearly manifested by express words or by necessary implication.

We may mention at the outset that after referring to the judgments noted above even the High Court in the impugned judgment has accepted that right of appeal is not a matter of procedure and that it is a substantive right. It is also recognised that this right gets vested in the litigants at the commencement of the lis and, therefore, such a vested right cannot be taken away or cannot be impaired or imperilled or made more stringent or onerous by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention to interfere with or impair or imperil a vested right cannot be presumed unless such intention be clearly manifested by express words or by necessary implication. However, the High Court has still dismissed the writ petition as it was of the opinion that the vested right of appeal conferred under Section 260A of the IT Act, insofar as payment of court fee is concerned, is taken away by necessary implication. In other words, the provisions of Section 52A of the 1959 Act inserted by the Amendment Act of 2003, in that sense, have retrospective operation thereby effecting the earlier assessment also. This proposition is advanced with the logic that before prior to introduction of Section 260A in the IT Act with effect from October 01, 1998, there was no right of appeal

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DATE: June 19, 2015 (Date of pronouncement)
DATE: July 1, 2015 (Date of publication)
AY: 2010-11 to 2015-16
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CITATION:
S. 253: Appeal in the ITAT can be filed against order of the CIT(A) on a stay application. Stay should be granted if relevant criteria of existence of prima facie arguable case, irreparable loss and financial position are not considered by the CIT(A)

Considering the fact that the issue on merits is yet to be decided by the CIT(A) and being of the view that the findings arrived at in para 5 have not taken into consideration the relevant criteria for deciding the issue namely the existence of prima facie arguable case in favour of assessee or not; irreparable loss if any and the financial position of the assessee etc. as no reference to these settled legal parameters is found mentioned in the order. It also seen that the merits of the order of the Assessing Officer till date have not been tested by any Appellate Authority. Thus, in these peculiar facts and circumstances, we direct the Revenue authorities from refraining to take any co-ercive action against the assessee till the passing of the order of the CIT(A) on merits

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DATE: April 8, 2015 (Date of pronouncement)
DATE: April 24, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 254(2)/ 260A: Pendency of an appeal filed in the High Court u/s 260A is no bar to the maintainability of a MA filed u/s 254(2)

Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments. That in a given case would not only save precious judicial time of the Tribunal but even of the higher Court

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DATE: April 10, 2015 (Date of pronouncement)
DATE: April 13, 2015 (Date of publication)
AY: 2011-12 to 2013-14
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CITATION:
S. 253(1)(a): An appeal can be filed before the Tribunal against an order of the CIT(A) rejecting the stay application

The term ‘order’ has not been defined under the Act. It is judicially understood that the word ‘order’ is a noun and has been held equivalent to or synonymous with the word ‘decision’. Therefore, having held that the CIT(A) has passed the order u/s 250 of the Act, in our considered opinion, the appeal is clearly maintainable under clause (a) of sub-section (1) of Section 253 of the Act

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DATE: March 31, 2015 (Date of pronouncement)
DATE: April 13, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 253(2): There is no judicial impropriety in the CIT filing an appeal before the Tribunal against his own order as CIT(A) deciding the appeal in favour of the assessee

The plea of the assessee that there was judicial impropriety in the case was not established because the present Commissioner of Income Tax Administration as Commissioner of Income Tax (Appeals) had passed the order and decided the issues on the basis of various case laws. However, when acting as Commissioner of Income Tax Administration and in view of the facts that there was no legal precedent by the Hon’ble Supreme Court or by the Hon’ble jurisdictional High Court on the said issue, directed the Assessing Officer to file appeal against the impugned order. It is not a case where the present person was setting in judgment of the earlier order passed by him but was acting in the capacity of administrator wherein the issues were put before higher forum to adjudicate the same

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DATE: January 16, 2015 (Date of pronouncement)
DATE: January 19, 2015 (Date of publication)
AY: 2012-13
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CITATION:
S. 271FA: As DIT is of the same rank as the CIT(A), an appeal against the DIT's order can only be filed before the ITAT even though s. 253(1) does not refer to s. 271FA

Though there is no specific reference of the order passed under section 271FA of the Act by the Director of Income-tax in section 253(1) of the Act for the purpose of filing an appeal against the said order, but an analogy drawn from the reading of section 253(1) of the Act is that the order passed by the Commissioners of Income-tax or an Officer who is equal in rank can only be challenged before the Tribunal, which is higher in rank