Circular No. 367

What it does

Settles when an order has been made 'the subject of an appeal' so as to bar revision under section 264(4)(c). Three situations were doubtful: an appeal withdrawn by the assessee and dismissed as such, an appeal dismissed as incompetent, and an appeal dismissed on limitation. The Board's view is that the order cannot be said to have been made the subject of an appeal if the appeal was disposed of by the Commissioner (Appeals) or the Appellate Tribunal without an order on merits under section 251(1) or section 254(1). In those three situations the Commissioner's revisional jurisdiction therefore survives.

Why it was issued

A doubt had been raised whether those three modes of disposal amounted to the order having been made the subject of an appeal for section 264(4)(c).

Who it reaches

Assessees whose appeal was withdrawn, dismissed as incompetent or dismissed as time-barred
Assessees seeking revision under section 264 after such a disposal
Commissioners deciding whether they have jurisdiction to revise

The provisions it speaks to

Left, the provision of the Income-tax Act, 1961 as the instrument itself names it. Right, the section of the Income-tax Act, 2025 that the department’s own concordance maps it to — which is where the same ground is now covered.

Under the 1961 Act	Now
s.33A	no counterpart recorded
s.251	s.360
s.264	s.378

The instrument, as the Board published it

The words below are the department’s own, reproduced from its published text. Where the department’s copy carried a publisher’s notes after the instrument, those are not reproduced.

SECTION 264 l REVISION OF OTHER ORDERS [CORRESPONDING TO SECTION 33A OF THE 1922 ACT]
1264. Situations where order can be said to have been made "subject of an appeal" in terms of clause (c) of sub-section (4)
1. Section 264(4)(c ) provides that the Commissioner shall not revise any order under that section where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. A doubt has been raised whether in the following situations the order can be said to have been made "subject of an appeal" :
(i) where the appeal was withdrawn by the assessee and it was dismissed as such;
(ii) where the appeal was dismissed on the ground that the appeal was incompetent;
(iii) where the appeal was dismissed on ground of limitation.
2. The Board are of the view that the order cannot be said to have bean made "subject of an appeal" if the appeal has been disposed of by the Commissioner (Appeals) or the Appellate Tribunal without passing on order under section 251(1) or 254(1) on merits.
Circular : No. 367 [F.No. 273/21/80-ITJ], dated 26-7-1983.

What to watch

The test the circular lays down is whether there was an order on merits under section 251(1) or section 254(1) - not whether an appeal was ever filed.
Where the appellate authority did decide on merits, section 264(4)(c) continues to bar revision.
The other bars in section 264(4) are untouched by this circular; only clause (c) is construed.

Where you meet it

In a revision petition under section 264 rejected on the ground that the order had already been the subject of an appeal.

On the same provision

Other instruments in this library that name the same provision of the 1961 Act. They are not necessarily still operative, and a later one may have replaced an earlier one without saying so.

Notification No. 619E — A notification under section 33A of the Income-tax Act, 1961 24 June 1988
Circular No. 325 — Section 33A l Developme NT Allowance 3 February 1982
Notification No. 1526 — Areas mentioned below to be hilly areas declared under section 33A 18 May 1966
Circular No. 7/2020 — Clarifications on provisions of the direct tax vivad se vishwas bill 2020 reg. 4 March 2020

← Circular No. 368 · Circular No. 365 →

A circular binds the department, not you and not a court. The Board issues a circular to its own officers. An assessee may hold the department to a circular that helps him; the department cannot hold an assessee to one that hurts him, and the Tribunal and the courts decide the law for themselves.

Source: the Income Tax Department’s own published text — its page for this instrument.

What this is