Section 375: procedure when an assessee claims an identical question of law is pending

When the assessee can make a declaration

This applies where an assessee claims that a question of law arising in their case for a tax year, pending before the Assessing Officer or an appellate authority (the "relevant case"), is identical to a question of law arising in their case for another tax year (the "other case"), and that question in the other case is pending:

• Before the High Court on a reference under section 256, or an appeal under section 260A, of the Income-tax Act, 1961
• Before the Supreme Court on a reference under section 257, or an appeal under section 261, of the Income-tax Act, 1961
• Before the High Court on an appeal under section 365 of this Act
• Before the Supreme Court on an appeal under section 367 of this Act
• In a Special Leave Petition under Article 136 of the Constitution, against an order of the Appellate Tribunal or the jurisdictional High Court

Filing the declaration and what happens next

The assessee may furnish a declaration, in the prescribed form and manner, that if the Assessing Officer or appellate authority agrees to apply the final decision on the question of law in the other case to the relevant case, the assessee will not raise that question of law in the relevant case before any appellate authority or in a subsequent appeal before a higher forum.

Where such a declaration is furnished to an appellate authority, the authority must call for a report from the Assessing Officer on the correctness of the assessee's claim, and give the Assessing Officer an opportunity of being heard if requested.

The Assessing Officer or appellate authority may, by a written order, admit the claim if satisfied the question of law is genuinely identical, or reject it if not satisfied. That order is final and cannot be questioned in any appeal or revision under the Act.

Effect of an admitted claim

Where a claim is admitted, the Assessing Officer or appellate authority may dispose of the relevant case without waiting for the final decision on the question of law in the other case, and the assessee cannot then raise that same question of law in an appeal before any appellate authority or a subsequent appeal before a higher forum.

Once the decision on the question of law in the other case becomes final, it is applied to the relevant case, and the Assessing Officer or appellate authority amends the earlier order, if necessary, to conform with that final decision.

Key definitions

"Appellate authority" means the Joint Commissioner (Appeals), Commissioner (Appeals) or Appellate Tribunal.

"Case", for an assessee, means any proceeding under the Act for assessing total income or imposing a penalty or fine.

"Subsequent appeal before a higher forum" means an appeal to the High Court under section 365, an appeal to the Supreme Court under section 367, or a Special Leave Petition under Article 136 of the Constitution against an order of the Appellate Tribunal or the jurisdictional High Court.

Frequently asked questions