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Report No. 58

Proceedings at the stage of Tribunal-truly judicial proceedings

6.38. In regard to the appeals to the High Court-which we are recommending-we are providing for an appeal to the High Court only if it involves a substantial question of law, and not merely a question of law as permitted under the present section 256. In our view though it is true that the assessment proceedings before the Appellate authority can be legitimately regarded as proceedings before Departmental persons, and, in that sense, not judicial proceedings as such, there can be no doubt that when the case reaches the In-tax Appellate Tribunal, the proceedings before the Tribunal are Judicial1. A Bench of the Tribunal ordinarily consists of two members2, and one of them is invariably a senior person with adequate judicial experience.

From that point of view, the proceedings before the Appellate Tribunal can well be regarded as the first appeal either by the assessee or the Commissioner. We are prepared to describe these proceedings as the first appeal, though, ordinarily, the question has been considered by two authorities, namely, the Income-tax Officer and the Appellate Authority. If that be so, the appeal to the High Court can well be considered to be in the nature of a second appeal and we think, it would not be unfair or unreasonable to suggest that such a second appeal to the High Court should lie on a substantial question of law. We have made a similar recommendation regard to the second appeal under section 100 of the Code of Civil Procedure3.

1. Cf. section 255(6), Income-tax Act, 1961.

2. Section 255(2), Income-tax Act, 1961.

3. 54th Report.

6.39. Then, as to the appeal to the Supreme Court, we propose to adopt the same philosophy of jurisprudence on which Article 133(1)(c) has been already amended by Parliament in accordance with our recommendations; and opting the same philosophy, we are recommending a similar amendment in Article 134(1)(c) of the Constitution. This Article deals with criminal appeals to the Supreme Court1 and the test, we are recommending, is that, except for the cases covered by Article 134(1)(a) and (b), an appeal from the appellate criminal decision of the High Court certifies that it raises a substantial question of law of general importance which, in its opinion, needs to be considered by the Supreme Court.

We see no reason, why, if the High Court had considered the appeal in Income-tax matters and has decided even important questions of law, an appeal should lie against its decision to the Supreme Court if the point of law, decided by the High Court, is not a point of first impression or is not one on which there is a divergence of opinion amongst different High Courts in country.

1. Chapter 3, supra.

6.40. That, in brief, explains why we have recommended a somewhat radical change in the scope of the appeal to the High Court as well as the appeal to the Supreme Court.

Structure and Jurisdiction of the Higher Judiciary Back

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