Section 366 — Case before High Court to be heard by not less than two Judges. Successor to s.260B of the 1961 Act.
Section 366 is in Chapter XVIII — Appeals Revisions and Alternate Dispute Resolutions, which runs from section 356 to section 389.
Sub-section (1) requires an appeal filed before the High Court under section 365 to be heard by a bench of not less than two Judges, and decided as per the opinion of those Judges or of the majority, if any, of them.
Sub-section (2) deals with the absence of a majority: the Judges state the point of law on which they differ, the case is then heard on that point only by one or more of the other Judges of the High Court, and the point is decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it.
An appeal under section 365 turns on a question of law whose answer binds the Department and taxpayers alike, so more than one Judge must decide it. Sub-section (2) supplies the mechanism for a split, keeping the further hearing confined to the stated point and counting the original opinions in the final tally, so a deadlock resolves without the appeal starting again.
| What | Figure | The condition on it | Where |
|---|---|---|---|
| Minimum size of the bench | Not less than two Judges | For an appeal filed before the High Court under section 365 | Sub-section (1) |
The requirement is a floor, not a fixed number. Where the Judges differ, only the stated point of law goes to the other Judge or Judges — the appeal is not reheard. The counting rule decides the outcome, because the majority is taken among all the Judges who have heard the case, including those who first heard it, so the later Judge's opinion prevails only by aligning with one of the originals.
Two Judges hearing an appeal under section 365 differ on a single question of law. They state that point and it is heard by a third Judge. The point is then decided by the majority of all three, counting the two who heard it first, so the third Judge's view carries only because it agrees with one of them; the balance of the appeal is not reheard.
On an appeal to the High Court under section 365. The section is why such an appeal is listed before a Division Bench rather than a single Judge, and why a split is resolved by a reference on a stated point instead of a rehearing.
such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it
See the full 1961 to 2025 concordance.