Section 376 — Procedure where an identical question of law is pending before High Courts or Supreme Court. Successor to s.158AB of the 1961 Act.
Section 376 is in Chapter XVIII — Appeals Revisions and Alternate Dispute Resolutions, which runs from section 356 to section 389.
Sub-section (1) applies, irrespective of anything in the Act, where the collegium is of the opinion that a question of law arising in an assessee's case for a tax year (the relevant case) is identical with a question of law arising in his own case for another tax year or in the case of any other assessee for any tax year, and that question is pending before the jurisdictional High Court or the Supreme Court in one of the listed proceedings — an appeal under section 260A of the Income-tax Act, 1961 or section 365 of this Act, an appeal under section 261 of the 1961 Act or section 367 of this Act, a reference under section 256 of the 1961 Act before the jurisdictional High Court, a reference before the Supreme Court under section 261 of the 1961 Act, or a Special Leave Petition under article 136 of the Constitution against an order of the Appellate Tribunal or the jurisdictional High Court which is in favour of the assessee (the other case). The collegium may then decide and inform the Principal Commissioner or Commissioner not to file any appeal at this stage, to the Appellate Tribunal under section 362(2) or to the jurisdictional High Court under section 365(2), in the relevant case.
Sub-section (2) requires the Principal Commissioner or Commissioner, on receiving that communication and irrespective of section 362(3) or section 365(2)(a), to direct the Assessing Officer to make an application in the prescribed form to the Appellate Tribunal or the jurisdictional High Court stating that an appeal on the question of law in the relevant case may be filed when the decision on that question becomes final in the other case. Sub-section (3) requires that application to be filed within one hundred and twenty days from the date of receipt of the order of the Joint Commissioner (Appeals) or the Commissioner (Appeals) or of the Appellate Tribunal.
Sub-section (4) makes the assessee's acceptance the pivot: the Principal Commissioner or Commissioner directs the Assessing Officer to make the sub-section (2) application if an acceptance is received from the assessee that the question of law in the other case is identical to the one in the relevant case, and to proceed as per section 362(2) or section 365(2)(b), irrespective of section 362(3) or section 365(2)(a), if no such acceptance is received.
Sub-section (5) provides that if the order of the Joint Commissioner (Appeals) or the Commissioner (Appeals) or the Appellate Tribunal is not in conformity with the final decision on the question of law in the other case, the Principal Commissioner or Commissioner may direct the Assessing Officer to appeal against it, with the other provisions of Parts A.2 and A.3 of the Chapter applying. Sub-section (6) sets the time for that appeal: sixty days to the Appellate Tribunal, or one hundred and twenty days to the High Court, from the date on which the order of the jurisdictional High Court or the Supreme Court in the other case is communicated to the Principal Commissioner or the Commissioner having jurisdiction over the relevant case, as per the procedure specified by the Board. Sub-section (7) defines "collegium" as a collegium comprising two or more Chief Commissioners or Principal Commissioners or Commissioners, as specified by the Board.
The same question of law is litigated in hundreds of cases at once, and the Department has to appeal in every one of them merely to keep the issue alive while a lead case works its way up. The section provides an alternative: an application recording that an appeal will be filed once the question is settled in the other case, so the relevant case waits instead of being separately fought. Because the assessee's own rights are affected by that wait, sub-section (4) makes the whole route conditional on his acceptance that the question is identical, and refusal simply returns the matter to an ordinary appeal.
| What | Figure | The condition on it | Where |
|---|---|---|---|
| Time limit for the application under sub-section (2) | One hundred and twenty days | From the date of receipt of the order of the Joint Commissioner (Appeals) or the Commissioner (Appeals) or of the Appellate Tribunal | Sub-section (3) |
| Time limit for the appeal to the Appellate Tribunal under sub-section (5) | Sixty days | From the date on which the order of the jurisdictional High Court or the Supreme Court in the other case is communicated to the Principal Commissioner or the Commissioner having jurisdiction over the relevant case | Sub-section (6) |
| Time limit for the appeal to the High Court under sub-section (5) | One hundred and twenty days | From the same date of communication of the order in the other case | Sub-section (6) |
| Composition of the collegium | Two or more Chief Commissioners or Principal Commissioners or Commissioners | As specified by the Board | Sub-section (7) |
The section does not extinguish the Department's appeal, it defers it: the collegium's decision is not to file an appeal "at this stage", and sub-section (5) revives the appeal once the question is finally decided in the other case, if the order in the relevant case does not conform to that decision. The assessee's acceptance under sub-section (4) is what selects the route — give it, and the case waits behind the lead case; withhold it, and the Principal Commissioner directs an ordinary appeal under section 362(2) or 365(2)(b) straight away. The three periods are measured from different events and are easy to conflate: the sub-section (3) application runs one hundred and twenty days from receipt of the appellate order in the relevant case, while the sub-section (6) appeal runs sixty days to the Tribunal or one hundred and twenty days to the High Court from communication of the final order in the other case to the Principal Commissioner or Commissioner having jurisdiction over the relevant case. Note also that the pending proceeding in the other case must be one of those listed and must be against an order which is in favour of the assessee.
An assessee wins a point before the Commissioner (Appeals), and the identical question is already pending before the jurisdictional High Court in another assessee's case in an appeal against an order in that assessee's favour. The collegium informs the Principal Commissioner not to appeal at this stage, and the Assessing Officer, within one hundred and twenty days of receiving the Commissioner (Appeals) order, applies to the Appellate Tribunal in the prescribed form stating that an appeal will be filed when the question becomes final in the other case. That route is available only because the assessee sent his acceptance that the question is identical; had he not, the Principal Commissioner would have directed an ordinary appeal under section 362(2). When the High Court later decides the question against the assessee's position, the Department has sixty days from communication of that order to appeal to the Tribunal in the relevant case.
An assessee meets this as a communication asking him to accept that the question of law in his case is identical to one pending in another case, and then as the Department's application in the prescribed form before the Appellate Tribunal or the High Court instead of an appeal. He meets it again later, as an appeal filed under sub-section (5) once the lead case is finally decided.
the collegium may, decide and inform the Principal Commissioner or Commissioner not to file any appeal, at this stage
stating that an appeal on the question of law arising in the relevant case may be filed when the decision on such question of law becomes final in the other case
The application referred to in sub-section (2) shall be filed within one hundred and twenty days from the date of receipt of the order of the Joint Commissioner (Appeals) or the Commissioner (Appeals) or of the Appellate Tribunal.
to proceed as per section 362(2) or section 365(2)(b), if no such acceptance is received
See the full 1961 to 2025 concordance.
All of them are in the Rules 2026 index.
See the circulars index.