With effect from 6-1-2006, an appeal against any order of Income Tax Appellate Tribunal shall lie to the National Tax Tribunal (NTT) if the case involves substantial question of law. The National Tax Tribunal has been set-up to adjudicate the matters relating to both direct and indirect taxes.
Note. The section quoted in discussion below are of the National Tax Tribunal Act, 2005.
A1. Establishment of National Tax Tribunal [Section 3]
The National Tax Tribunal has been set up on 06-01-2006 under the National Tax Tribunal Act 2005. The Act came into force w.e.f. 28-12-2005 and is applicable to the wholç of India. It is important to note that prior to the constitution of National Tax Tribunal, any order of Income Tax Appellate Tribunal (ITAT) involving substantial question of law, was appealable to High Court. Thus, any order passed by Appellate Tribunal on or after 1-06-2006 shall have to be taken to National Tax Tribunal instead of High Court.
A2. Composition of National Tax Tribunal [Section 4]
The National Tax Tribunal shall consist of a chairperson and such number of members as the Central• Government may deem fit.
A3. Constitution and Jurisdiction of Benches [Section 5]
The jurisdiction of the National Tax Tribunal is exercised by the benches thereof as constituted by the chairperson. These benches of the NIT ordinarily sit in the National Capital Territory of Delhi or at such other places as the Central Government may notify in consultation with the chairperson.
A4. Qualification of Chairperson and Members [Section 6]
(i) Chairperson. Any person who has been a judge of the Supreme Court or the Chief Justice of a High Court.
(ii) Members. A person is qualified for appointment as member if he
(i) is or has been, or is eligible to be a judge of a High Court; or
(ii) is or has been, a member of the Income Tax Appellate Tribunal or of the Custom, Excise and Service Tax Appellate Tribunal for at least 5 years.
A5. Appointment of Chairperson and Members [Section 7]
The Chairperson and members are appointed by the Central Government on the recommendations of a Selection Committee consisting of
(i) the Chief Justice of India or a judge of the Supreme Court nominated by him;
(ii) the Secretary in the Ministry of Law and Justice (Department of Legal Affaris);
(iii) The Secretary in the Ministry of Finance (Department of Revenue).
A6. Terms of Office of Chairperson and other Members [Section 8]
The Chairperson and every other member shall hold office as such for a period of 5 years from the date on which he enters upon his office and shall be eligible for re-appointment.
However, the maximum age limit for Chairperson is 68 years and for members is 65 years.
A7. Resignation of Chairperson and other Members [Section 9]
They may resign their office by giving notice in writing under their hands. Such resignation shall be addressed to the Central Government.
A8. Removal and Suspension of Chairperson and Other Members [Section 11]
(i) The Central Government may, in consultation with the Chief Justice of India, remove from office the Chairperson or any Member who—
(a) has been adjudged an insolvent; or
(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or
(c) has become physically and mentally incapable of acting as such Chairperson or Member of the National Tax Tribunal; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chairperson or a Member of the National Tax Tribunal; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest. [Section 11(1)].
(ii) The Chairperson or any other Member shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehavior or incapacity after an inquiry made by a Judge of the Supreme Court in which such Chairperson or Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. [Section 11(2)1.
(iii) The Central Government may suspend from office the Chairperson or any other Member in respect of whom © reference of conducting an inquiry has been made to the Judge of the Supreme Court under sub-section (2) until the Central Government has passed orders on receipt of the report of the Judge of the Supreme Court on such reference. [Section 11(3)].
(iv) The Central Government may be rules, regulate the procedure for the investigation of misbehavior or incapacity of the Chairperson or a Member referred on in sub-section (2). [Section 11(4)].
A9. Officers and Employees of National Tax Tribunal [Section 12]
(i) The Central Government shall provide the National Tax Tribunal with such officers and employees as it may deem fit. [Section 12(1)].
(ii) The salaries and allowances and other conditions of service of officers and employees of the National Tax Tribunal shall be such as may be prescribed. [Section 12(2)].
(iii) The officers and employees of the National Tax Tribunal shall discharge their functions under the general superintendence of the Chairperson. [Section 12(3)] –
(iv) The officers and the other employees shall be appointed on the recommendations of a Selection Committee constituted by the Central Government. [Section 12(4)].
A10. Appearance before National Tax Tribunal
(i) A party to an appeal other than Government may either appear in person or uthorize one or more chartered accountants or legal practitioners to present his or its case before the National Tax Tribunal. [Section 13(1)].
(ii) The Government may uthorize one or more legal practitioners or any of its officers to present its case before the National Tax Tribunal. [Section 13(2)].
Explanation—For the purposes of this section—
(a) “chartered accountant’ means a chartered accountant as defined in clause (b) of subsection (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(b) “legal practitioner” means an advocate—a vakil or any attorney of any High Court, and includes a pleader in practice.
A11. Member to act as Chairperson or to discharge his functions in certain circumstances
(i) In the event of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Central Government may designate the senior most member to act as the Chairperson until the day on which a Chairperson, appointed in accordance with the provisions of this Ad to fill such vacancy, enters upon his office. [Section 14(IU.
(ii) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the Central Government may authorize the senior most Member to discharge the functions of the Chairperson until the date on which the- Chairperson resumes his duties. [Section 14(2)].
(iii) The senior most member designated to act under sub-section (1) or to discharge functions of the Chairperson under subsection (2), of the Chairperson shall continue to draw salary and allowances of a Member. [Section 14(3)]. –
A12. Who can file an Appeal ? [Section 15(2)]
The Chief Commissioner or the Commissioner of Income Tax ‘OR; an assessee.
A13. Time limit for filing Appeal [Section 15(2)(a)]
The appeal can be filed within 120 days from the date on which the order appealed against is received by the assessee or the aggrieved person or the Chief Commissioner or Commissioner, as the case may be. However, NTT may entertain a belated appeal within 60 days after the expiry of the said period of 120 days, if it is satisfied that the appellant was prevented by sufficient cause from preferring an appeal in time.
A14. Form and Fees of Appeal [Section 15(2)(b)&(c)]
The appeal shall be in the form of a memorandum of appeal precisely stating therein the substantial question of law involved and shall be accompanied by such fees as may be prescribed.
A15. Formulation of ‘Question of Law’ [Section 15(3)]
After admitting an appeal, National Tax Tribunal shall formulate the question of law. It may also determine, any relevant issue in connection with the question so formulated, which has not been so determined by the Income Tax Appellate Tribunal or which has been wrongly determined by the Income Tax Appellate Tribunal.
A16. Deposit of Tax before Filing Appeal [Section 15(4)]
Where the decision of Income Tax Appellate Tribunal requires the payment of any tax etc. the assessee or aggrieved person shall not be allowed to prefer such appeal unless he deposits at least 25% of such tax.
However, if NTT is of the opinion that deposit of tax would cause undue hardship to such person, it may dispense with such deposit subject to such conditions as it may deem fit to safeguard the interest of the revenue.
A17. Procedure and Powers of National Tax Tribunal [Section 16]
(i) The National Tax Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall he guided by the principles of natural justice. It shall have powers to regulate its own procedure. [Section 16(1) and (2)1.
(ii) The National Tax Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters, namely
(a) requiring the discovery and production of books of account and other documents;
(b) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document, from any office;
© dismissing an appeal for default or deciding it, ex parte;
(d) setting aside any order of dismissal of any appeal for default or any order passed by it, ex parte;
(e) rectifying any mistake or error apparent on the face of record; and
(f) any other matter which may be prescribed. [Section 16(3)].
(iii) All proceedings before the National Tax Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code and the National Tax Tribunal shall be deemed to he a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. [Section 16(4)].
A18. Finality of Orders of National Tax Tribunal [Section 17]
Any order passed by the National Tax Tribunal shall be final and shall be given effect to accordingly. No civil court shall have or be entitled to exercise any jurisdiction, power or authority with respect to any of the matters falling within the jurisdiction of the National Tax Tribunal.
A19. Decision by Majority [Section 18]
If the Members of a Bench consisting of two members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson, who shall hear the point or points himself or nominate any other member for such hearing and such point or points shall be decided according to the opinion of the majority, who have heard the case including those who first heard it.
A20. Special Bench [Section 19]
Where a judgment pronounced on a question of law by a Bench subsequently comes up for hearing before any Bench, and the latter Bench is of the opinion that the question of law requires reconsideration, then the latter Bench shall make a reference to the Chairperson to constitute a Special Bench consisting of five Members to hear and decide such question of law.
A21. Interim Order [Section 20]
In any other provisions of this Act or any other law for the time being in force, no interim order (whether by way of injunction or stay or otherwise) shall be made in relation to any appeal under this Act, unless—
(a) copies of such appeal and all documents in support of the plea for such interim order are furnished to the party against whom the appeal is preferred; and
(b) opportunity is given to such party to be heard in the matter.
A22. Power to Punish for Contempt [Section 21]
The National Tax Tribunal shall have and exercise the same jurisdiction, powers and authority in respect of contempt of itself as the High Court has and may exercise such power or authority, for this purpose under the provisions of the Contempt of Courts Act, 1971 (70 of 1971), which shall have effect subject to the modification that—
(a) any reference therein to a High Court shall be construed as including a reference to the National Tax Tribunal;
(b) any reference to the Advocate General in Section 15 of the said Act shall be construed as a reference to such law officer as the Central Government may specify in this behalf.
Provided that such matters shall be heard by a Special Bench consisting of five members constituted by the Chairperson.
A23. Order of National Tax Tribunal [Section 22]
The National Tax Tribunal may, after giving the parties to any proceedings before it, an opportunity of being heard, pass such orders thereon as it thinks fit.
A24. Transfer of Pending Cases from High Court [Section 23]
(i) On and from such date as the Central Government may, by notification, specify, all matters and proceedings including appeals and references under the direct taxes and indirect taxes pending before any High Court immediately before that date shall stand transferred to the National Tax Tribunal.
(ii) Where any matter or proceeding including appeals and references stand transferred from the High Court to the National Tax Tribunal under sub-section (1)—
(a) The High Court shall, as soon as may be after such transfer, forward the records pertaining to such matter or proceeding to the National Tax Tribunal;
(b) The National Tax Tribunal shall, on receipt of such records, proceed to deal with such matter or proceeding from the stage at which it is transferred or from an earlier stage or de JOVO as it may deem fit;
(C) The Chairperson shall constitute a Bench consisting of such number of Members as he deems fits for hearing cases transferred under this section.
A25. Appeal to Supreme Court [Section 24]
Any person including any department of the Government aggrieved by any decision or order of the National Tax Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the National Tax Tribunal to him :
Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within such time as it may deem fit. |
