2004 (11) TMI 24

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....ome-tax Act provides for appeal to the High Court and the said provision reads thus: "260A. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate 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 ; . . . (c) in the form of a memorandum of appeal precisely stating there....

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....to the High Court. Sub-section (1) of section 254 provides that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The expression, "an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal" obviously is referable to such order passed under section 254(1). An order passed by the Tribunal on the application for rectification under section 254(2) rejecting rectification application cannot be said to be an order passed in appeal by the Appellate Tribunal within the meaning of section 260A(l). Mr. K. Gopal, learned counsel for the assessee, however, relied upon the judgment of the Supreme Court in the case of C....

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....on used is, "require the Appellate Tribunal to refer to the High Court any question of law arising out of an order passed under section 254". However, in section 260A, the Legislature has not provided an appeal to the High Court from every order passed under section 254 but has confined it to the order passed in appeal by the Appellate Tribunal. This is made clear by the use of the expression, "an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal". If the Legislature intended to provide an appeal to the High Court from the order passed by the Appellate Tribunal on the application for rectification under section 254(2), the Legislature would not have used the expression in section 260A that an app....