November 2018


Senior Advocate

1.  Prelude

In the hierarchy of tax, the Assessing Officer is the first authority to determine the tax liability in accordance with law. One of the most important provisions of the Constitution of India is Article 265, which provides “no tax shall be levied or collected except by authority of law”. CBDT vide Circular No. 14 (XL-35 dt. 11-04-1955 dealing with refunds and reliefs to the assessee, stated that it is the duty of the Assessing Officer to grant relief if he is legally entitled though the assessee has not claimed it in the return of income. First appeal lies u/s. 246A of the Income-tax Act before the Commissioner of Income-tax (Appeals), who has been stated as a superior assessing authority to correct and also to cure the assessment. Adversary proceedings commence with appeal u/s. 253 to the Income Tax Appellate Tribunal, an independent body functioning under the Ministry of Law, which is the final fact finding authority and to whom second appeal lies by the assessee as well as by the Revenue. Third appeal lies u/s. 260A before the State High Court against order of the Income Tax Appellate Tribunal only on substantial question of law. Final appeal lies to the Supreme Court of India u/s. 261 and Special Leave Petition can be filed under Article 136 of the Constitution of India before the Supreme Court, which is discretionary power, whereas all other appeals are statutory. Relevant rules govern the procedure in first and second appeal and third appeal is governed by the Civil Procedure Code and State High Court rules. In the same order is the subordination and each is bound by the judicial precedents of the higher authorities, Tribunal, High Court and Supreme Court. To maintain discipline, decorum and to avoid chaos and arbitrariness ‘Judicial Discipline’ has been built-up by the judicial precedents, judge made law.



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