November 2021

Appeal to Appellate Tribunal – Powers of Tribunal – Tribunal cannot transfer case from Bench falling within jurisdiction of a particular High Court to Bench under jurisdiction of different High Court Appeal to High Court – Writ – Competency of appeal – Competency of writ petition – Meaning of ‘every order’ of section 260A – Order must relate to subject matter of appeal – Order transferring case – Appeal not maintainable against order – Writ petition maintainable

K. B. Bhujle
Advocate

8 MSPL Ltd. vs. Principal CIT [2021] 436 ITR 199 (Bom) A.Ys.: 2005-06 to 2008-09; Date of order: 21st May, 2021 Ss. ss. 255 and 260A of ITA, 1961 r.w.r. 4 of ITAT Rules, 1963; and Article 226 of Constitution of India

Appeal to Appellate Tribunal – Powers of Tribunal – Tribunal cannot transfer case from Bench falling within jurisdiction of a particular High Court to Bench under jurisdiction of different High Court

Appeal to High Court – Writ – Competency of appeal – Competency of writ petition – Meaning of ‘every order’ of section 260A – Order must relate to subject matter of appeal – Order transferring case – Appeal not maintainable against order – Writ petition maintainable


The assessee was engaged in the business of mining, running a gas unit and generating power through windmills. The relevant period is the A.Ys. 2005-06 to 2008-09. Following centralisation of the cases at Bangalore, the assessments were carried out at Bangalore and in all the assessment orders the A.O. was the Assistant Commissioner. The first appeals against the assessment orders were preferred before the Commissioner (Appeals) at Bangalore, after which the appeals were filed before the Tribunal at Bangalore. On 20th August, 2020, the President of the Tribunal passed an order u/r 4 of the Income-tax (Appellate Tribunal) Rules, 1963 directing that the appeals be transferred from the Bangalore Bench to be heard and determined by the Mumbai Benches of the Tribunal.

The assessee filed a writ petition challenging the order. The Bombay High Court allowed the writ and held as under:

‘i) Section 255 of the Income-tax Act, 1961 deals with the procedure of the Appellate Tribunal. Sub-section (1) of section 255 says that the powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President of the Appellate Tribunal from among the Members thereof. Sub-section (5) says that the Tribunal shall have power to regulate its own procedure and that of its various Benches while exercising its powers or in the discharge of its functions. This includes notifying the places at which Benches shall hold their sittings. This provision cannot be interpreted in such a broad manner as to clothe the President of the Tribunal with jurisdiction to transfer a pending appeal from one Bench to another Bench outside the headquarters in another State.

ii) The Income-tax (Appellate Tribunal) Rules, 1963 have been framed in exercise of the powers conferred by sub-section (5) of section 255 of the Act to regulate the procedure of the Appellate Tribunal and the procedure of the Benches of the Tribunal. Sub-rule (1) of Rule 4 empowers the President to direct hearing of appeals by a Bench by a general or special order, and sub-rule (2) deals with a situation where there are more than two Benches of the Tribunal at any headquarters and provides for a transfer of an appeal or an application from one

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