Appeal to Supreme Court [Section 261]

The assessee or the Principal Commissioner or Commissioner may prefer an appeal to the Supreme Court from any judgement of the High Court. However, the appeal can lie to Supreme Court only if the High Court certifies the case to be a fit case for appeal to the Supreme Court. Thus, this certificate of fitness is a must for preferring an appeal to the Supreme Court. If, however, the High Court decides not to give such a certificate, then the aggrieved party may make an application to the Supreme Court under Article 136 of the Constitution for Special Leave to Appeal against the decision of the judgment

1. Hearing and Judgment by Supreme Court [Section 262]:

The Supreme Court upon hearing any such case shall decide the question of law raised therein and shall deliver its judgement thereon containing the grounds on which such decision is founded. Where the judgment of the High Court is varied or reversed in appeal, effect shall be given to the order of the Supreme Court in the manner provided in section 260A in the case of a judgment of the High Court. The cost of the appeal shall be in the discretion of the Supreme Court.

2. Filing of Appeal or Application for reference by Income Tax Authority [Section 268A]:

The Hon’ble Supreme Court in Berger Paints India Ltd. v CIT, Kolkata (2004) 266 ITR 99 (SC) has held that if the revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge the correctness in the case of other assessees without just cause.

With a view to protecting the Revenue’s right to file or not to file an appeal, the Act has inserted a new section 268A so as to provide that—

  1. The Board may issue orders, instructions or directions to other income tax authorities, fixing such monetary limits as it may deem fit. Such fixing of monetary limit is to be for the purpose of regulating filing of appeal or application for reference by any income tax authority under the provisions of this Chapter.
  2. Where an income-tax authority has not filed any appeal or application for reference on any issue in the case of an assessee for any assessment year, due to abovementioned order/instruction/direction of the Board, such authority shall not be precluded from filing an appeal or application for reference on the same issue in the case of—
    1. the same assessee for any other assessment year; or
    2. any other assessee for the same or any other assessment year.
  3. Where no appeal or application for reference has been filed by an income tax authority pursuant to the above mentioned orders/instructions/directions of the Board, it shall not be lawful for an assessee to contend that the income tax authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for reference in any case.
  4. The Appellate Tribunal or Court shall have regard to the above mentioned orders/ instructions/directions of the Board and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.
  5. Every order/instruction/direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) of this new section and all the provisions of this section shall apply to such order/instruction/direction.