Directorate of L&R letters dated 2-9-2011 for filing of review petition and dated 1-9-11 for sending SLP proposal. Subsequent to the letter under reference, some suggestions have been received that instead of filing review petition, a recall petition may be filed in High Court on the basis of Supreme Court order in Surya Herbal case. This is because for filing review petition there is a time limit of 30 days from the date of relevant order which will not be applicable for filing recall petition. In view of the above, the field officers are advised to file review or recall petition as may be suggested by the Sr. Standing Counsel in a particular case.
- Confusion in the field relating to this matter is whether or not review petition is to be filed in those cases where tax effect is less than Rs. 4 lakhs. It was suggested by this Directorate letter no. Addl DIT (L&R)-I/SLP/2011-12/4502 dated 1-9-2011 addressed to all CCsIT/DGsIT at Delhi that proposal to file SLP was not to be sent in such cases. In this regard it is clarified that as per letter dated 24-8-2011 the Board’s decision only not to file SLP due to smallness of tax effect was conveyed. However since appeal to High Court was filed as per the relevant Instruction applicable at the time of filing, review/recall petition in such cases is also to be filed where tax effect is less than Rs. 4 lakhs, if filing appeal to High Court was permissible as per Instruction applicable at the time of filing.
Reference: Section 260A of the income Tax Act, 1961
Appeal to High Court
(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involves a substantial question of law.
(2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be—
(a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner;
(b) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
(2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.
(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which—
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.