Section 358 — Form of appeal and limitation. Successor to s.249 of the 1961 Act.
Section 358 is in Chapter XVIII — Appeals Revisions and Alternate Dispute Resolutions, which runs from section 356 to section 389.
Sub-section (1) requires every appeal under Chapter XVIII to be in such form and verified in such manner as may be prescribed. Sub-section (2) fixes the fee for an appeal to the Commissioner (Appeals) or the Joint Commissioner (Appeals) by reference to the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates: Rs. 250 where that income is Rs. 100000 or less; Rs. 500 where it is more than Rs. 100000 but not more than Rs. 200000; Rs. 1000 where it is more than Rs. 200000; and Rs. 250 where the subject matter is not covered by clauses (a), (b) and (c).
Sub-section (3) requires the appeal to be presented within thirty days — from service of the notice of demand where it relates to an assessment or penalty, and otherwise from service of intimation of the order appealed against. Sub-section (4) excludes, for clause (a), the period from the making of an application under section 440(1) to the service of the order rejecting it, where that application is rejected, and sub-section (5) allows admission after the period on satisfaction of sufficient cause.
Sub-section (6) bars admission unless, at the time of filing, the assessee has paid the tax due on the income returned where a return has been filed, or an amount equal to the advance tax which was payable by him where no return has been filed. Sub-section (7) allows the Joint Commissioner (Appeals) or the Commissioner (Appeals), on an application by the appellant and for reasons recorded in writing, to exempt him from the operation of sub-section (6)(b).
An appeal has to be capable of being received and processed, so the Act fixes the form, a graduated fee and a short limitation period running from service rather than from the date of the order. Sub-section (6) exists because an appeal should not postpone tax the assessee has himself admitted or ought to have paid in advance; sub-sections (5) and (7) leave room for genuine cases.
| What | Figure | The condition on it | Where |
|---|---|---|---|
| Appeal fee | Rs. 250 | Where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is Rs. 100000 or less | Sub-section (2)(a) |
| Appeal fee | Rs. 500 | Where that total income is more than Rs. 100000 but not more than Rs. 200000 | Sub-section (2)(b) |
| Appeal fee | Rs. 1000 | Where that total income is more than Rs. 200000 | Sub-section (2)(c) |
| Appeal fee where the subject matter is not income-related | Rs. 250 | Where the subject matter of an appeal is not covered under clauses (a), (b) and (c) | Sub-section (2)(d) |
| Limitation for presenting an appeal | Thirty days | From the date of service of the notice of demand where the appeal relates to any assessment or penalty; otherwise from the date intimation of the order is served | Sub-section (3)(a) and (b) |
| Period excluded from the thirty days | From the date the section 440(1) application is made to the date the order rejecting it is served | Only for sub-section (3)(a), and only where the application is rejected | Sub-section (4) |
The fee slabs turn on the total income as computed by the Assessing Officer, not on the amount in dispute, so a small addition in a large assessment still attracts the Rs. 1000 fee. Limitation runs from service, not from the date the order bears, and the exclusion in sub-section (4) is available only where a section 440(1) application has been rejected and only for the demand-notice limb. The pre-deposit in sub-section (6) is a condition of admission tested at the time of filing, and the relaxation in sub-section (7) is confined to clause (b) — the no-return case — so where a return was filed the tax due on the returned income must be paid with no power to waive it. Delay beyond thirty days is not fatal but discretionary under sub-section (5).
An assessee is served with a notice of demand after an assessment computing total income at Rs. 40 lakh, of which only a Rs. 3 lakh addition is disputed. The fee is Rs. 1000 under clause (c), because the slab looks at the total income computed by the Officer. The appeal must be presented within thirty days of service, and will not be admitted unless the tax due on the income returned has been paid — sub-section (7) cannot help, reaching only the no-return case. If presented on the fortieth day, it may still be admitted under sub-section (5) on sufficient cause.
This is the section you comply with when filing a first appeal before the Commissioner (Appeals) or the Joint Commissioner (Appeals) — it fixes the form, the fee and the thirty days from service. You meet it adversely if the appeal is refused admission for non-payment under sub-section (6) or treated as time-barred.
The appeal shall be presented within thirty days,—
may, for the purposes of sub-section (6)(b) and on an application made by the appellant in this behalf, for reasons to be recorded in writing, exempt him from the operation of the provisions of that sub-section
See the full 1961 to 2025 concordance.
All of them are in the Rules 2026 index.
