Situs of AO is irrelevant to determine jurisdiction of HC over order of ITAT
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- Last Updated on 4 March, 2022
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There have been several views regarding the jurisdiction of the High Court(HC) for entertaining an appeal u/s 260A. One view is that the appeal u/s 260A can be filed in the HC in whose territorial jurisdiction seat of AO who passed the order was situated or who had the jurisdiction at the time of filing of appeal. The other view is that the appeal against the order of tribunal can be filed to the HC in whose territorial jurisdiction, seat of the bench of tribunal which passed the order was situated.
The above controversy has been addressed by the Bombay HC in PCIT v. Sungard Solutions (I) (P.) Ltd [2019] 105 taxmann.com 67/263 Taxman 277 (Bombay). The order in the above case was passed by the AO-Bangalore, in respect of which appeal was decided by ITAT-Bangalore. Case was transferred from AO-Bangalore to AO-Pune and the AO-Pune filed an appeal to the Bombay HC. The assessee contended that the appeal against the order passed by the AO-Bangalore would fall under the jurisdiction of Karnataka HC and not under the jurisdiction of the Bombay HC. Revenue contended that the appeal had been rightly filed before the Bombay HC as currently the AO-Pune was holding the jurisdiction over assessee. The Bombay HC made the following important observations:
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1. Sections 116, 119, 120, 124 and 127 would be applicable to only the income tax authorities as listed out in Sec 116. 2. Chapter XX governs the jurisdiction of the court as to which court will hear appeals against the order passed by the tribunal. 3. Seat of the tribunal and the State in which the tribunal is situated would decide the jurisdiction of the court to which the appeal would lie under the Act. 4. As per ITAT rules, it is the President of the ITAT who will decide the bench which shall hear the appeal filed before it. Thus, the seat of AO will not decide the seat of tribunal which will hear the case. 5. Thus, in the present case the Bangalore bench is bound by the decisions of the Karnataka HC. It is only the Karnataka HC which will bind the tribunal by its decision and not the Bombay HC.Thus, the tribunal is not bound by the decision of the Bombay HC, if such decision is different from the decision of the Karnataka HC. 6. The Jurisdiction of HC would be decided on application of Sections 260A & 269. There are several case laws which are in favour of the above stated explanation of the Bombay HC that the appeal against the order of ITAT would lie before the HC exercising jurisdiction over such tribunal. Such case laws are stated below: i. CIT v. Akzo Nobel India Ltd. ii. CIT v. J.L. Marrison (India) Ltd. iii. CIT v. A.B.C. India Ltd. In some cases it has been ruled that the seat of HC will be decided according to seat of AO at the time of filing appeal before HC. Those are as follows: i. CIT v. AAR BEE Industries[2013] ii. CIT v. Parabolic Drugs Ltd. [2014] iii. CIT v. Tibetan Children’s Village [2017] iv. CIT v. Motorola India Ltd. v. CIT v. H.F.C.L. Infotel Ltd. It will be appropriate to state that Article 226/227 of the Constitution provides for superintendence of HC of the State over all other Tribunals & courts functioning in that State. As the orders of the HC are binding on the Bench of tribunal functioning in the territorial jurisdiction of that HC, the orders passed by that Tribunal can be appealed against in the HC of that State only. Sec 127 deals with transfer of case from one AO’s jurisdiction to another AO ‘s jurisdiction in different State, but jurisdiction of HC where appeal is to be filed cannot be transferred under this section. HC & ITAT are not Income tax authorities within the meaning of Sec 116/119 & therefore, order u/s 127 will not affect the jurisdiction of HC. Thus, the Calcutta HC & Bombay HC have given a harmonious view as compared to the view taken by the Delhi HC and the Punjab & Haryana HC.
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