Rule 195: Department application to defer an appeal on an identical question of law

Form: Form No. 118.

Applicant: the Assessing Officer.

Forum: the Appellate Tribunal or the jurisdictional High Court, as the case may be.

Under section 376(1), the collegium may decide and inform the Principal Commissioner or Commissioner not to file an appeal at this stage where a question of law in the relevant case is identical to one pending in a higher forum in a case decided in the assessee’s favour.

Under section 376(2), on receipt of the collegium’s communication, the Principal Commissioner or Commissioner is to direct the Assessing Officer to make an application in the prescribed form, 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. Section 376(3) provides that the application is filed within one hundred and twenty days from the date of receipt of the relevant appellate order.

Section 376(4)(a) makes the application conditional: the Assessing Officer is directed to make it only if an acceptance is received from the assessee to the effect that the question of law in the other case is identical to that arising in the relevant case. Under section 376(4)(b), if no such acceptance is received, the Assessing Officer is directed to proceed with the appeal under section 362(2) or section 365(2)(b). Read the full section for later steps once the other case is decided.

Form No. 118 is a departmental filing made by the Assessing Officer. The assessee does not file it, but under section 376(4) the application is made only if the assessee’s acceptance that the question of law is identical is received. Rule 195 itself prescribes no form for that acceptance. An assessee’s own declaration on an identical question of law is a separate route under section 375 and Rule 194.

The rule prescribes only the form and the applicant. The conditions for deferral and the time limit come from section 376.

If you are the respondent assessee:

Records worth keeping:

Hypothetical illustration only — not a real case, and not a prediction of how any authority will decide.

The Commissioner (Appeals) decides a question of law in favour of an assessee. The same question, in another case also decided in an assessee’s favour, is already pending before the jurisdictional High Court. The collegium decides that no appeal should be filed at this stage. The assessee gives its acceptance that the question of law in the other case is identical. The Assessing Officer, on the Commissioner’s direction, applies to the Appellate Tribunal in Form No. 118, stating that an appeal on that question may be filed when the decision in the other case becomes final.