Section 361: constitution of the Appellate Tribunal

Introduction

Section 361 establishes the Appellate Tribunal and describes its membership and leadership. The Central Government constitutes it with Judicial and Accountant Members and appoints its President and Vice-Presidents.

Service conditions depend on the appointment period and the legislation expressly named in the section. The Vice-President may exercise a President’s function only to the extent delegated by the President through a written general or special order.

Key takeaways

Constitution of the Tribunal

The Central Government shall constitute an Appellate Tribunal consisting of as many Judicial and Accountant Members as it thinks fit, to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.

Service conditions of Members

Regardless of anything else in the Act, the qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms of service of the President, Vice-President and other Members of the Appellate Tribunal are governed as follows:

• For appointments after the commencement of the Tribunals Reforms Act, 2021 - governed by Chapter II of that Act
• For appointments before the commencement of Part XIV of Chapter VI of the Finance Act, 2017 - governed by the Income-tax Act, 1961 and the rules made under it, as if section 184 of the Finance Act, 2017 had not come into force

Appointment of President and Vice-President(s)

The Central Government shall appoint, as President of the Appellate Tribunal, either a sitting or retired Judge of a High Court who has completed not less than seven years of service as a High Court Judge, or one of the Vice-Presidents of the Appellate Tribunal.

The Central Government may appoint one or more Members of the Appellate Tribunal to be its Vice-President or Vice-Presidents.

The Vice-President exercises such powers and performs such functions of the President as the President delegates by a general or special order in writing.

Step-by-step flow for understanding the Appellate Tribunal under Section 361

1. 1

   Constitution of the Tribunal

   Under Section 361(1), the Central Government constitutes the Appellate Tribunal with as many Judicial and Accountant Members as it thinks fit, to exercise the powers and functions given to it by the Act.

2. 2

   When was the President, Vice-President or Member appointed?

   Section 361(2) decides which law governs their service conditions.

   • After the commencement of the Tribunals Reforms Act, 2021: Chapter II of the Tribunals Reforms Act, 2021 governs. Go to the next step.
   • Before the commencement of Part XIV of Chapter VI of the Finance Act, 2017: The Income-tax Act, 1961 and its rules govern, as if section 184 of the Finance Act, 2017 had not come into force. Go to the next step.
3. 3

   Who can be appointed President?

   Under Section 361(3), the Central Government appoints either a sitting or retired High Court Judge with not less than seven years of service as a Judge in a High Court, or one of the Vice-Presidents of the Tribunal.

4. 4

   Vice-Presidents and delegation

   The Central Government may appoint one or more members as Vice-President (Section 361(4)). A Vice-President exercises only those powers and functions of the President that the President delegates by a general or special written order (Section 361(5)).

Practical checklist

Glossary

Judicial Member

One of the two categories of Appellate Tribunal members named in section 361(1).

Accountant Member

The other category of Appellate Tribunal members named in section 361(1).

Frequently asked questions