Section 361 Income Tax Act 2025: How Is the Income Tax Appellate Tribunal Constituted?
Section 361 governs the constitution and leadership of the Income Tax Appellate Tribunal (ITAT). It deals with the Tribunal's Judicial and Accountant Members, the legal framework for their service conditions, and the appointment and powers of its President and Vice-Presidents.
What does Section 361 provide?
Section 361 is an institutional provision. It establishes the statutory framework for the Appellate Tribunal, rather than setting out which orders are appealable or the deadlines for filing appeals. Those matters are addressed principally by Section 362.
Explanation of Section 361(1) to 361(5)
| Provision | Subject | Legal effect |
|---|---|---|
| 361(1) | Constitution of Tribunal | Central Government constitutes an Appellate Tribunal with as many Judicial and Accountant Members as it thinks fit. |
| 361(2)(a) | Members appointed after the Tribunals Reforms Act, 2021 commenced | Qualifications, appointment, tenure, remuneration, resignation, removal and other service conditions are governed by Chapter II of that Act. |
| 361(2)(b) | Members appointed before Part XIV of Chapter VI of the Finance Act, 2017 commenced | Specified service matters continue to be governed by the Income-tax Act, 1961 and rules made under it, as though Section 184 of the Finance Act, 2017 had not commenced. |
| 361(3) | President | Central Government appoints an eligible sitting or retired High Court Judge with at least seven years' service as a Judge, or one of the Tribunal's Vice-Presidents. |
| 361(4) | Vice-President | Central Government may appoint one or more Tribunal Members as Vice-President or Vice-Presidents. |
| 361(5) | Delegation | A Vice-President may exercise powers and perform functions delegated by the President through a general or special written order. |
Section 361(1): Constitution and composition
The Central Government must constitute the Appellate Tribunal. Its membership comprises Judicial Members and Accountant Members, in such numbers as the Government considers fit. Section 361(1) does not prescribe a fixed number of members or determine the composition of every individual bench.
Section 361(2): Which service law applies?
Subsection (2) begins with an overriding provision and identifies different legal regimes based on the date of appointment. For members appointed after the commencement of the Tribunals Reforms Act, 2021, Chapter II of that Act governs the listed service matters. For the older category appointed before commencement of Part XIV of Chapter VI of the Finance Act, 2017, the Income-tax Act, 1961 and its rules apply on the specific statutory basis described in clause (b).
The two appointment categories should not be treated as a complete summary of every possible historical appointment scenario. Applicable transitional legislation and judicial decisions may also require consideration in an individual service dispute.
Who can be appointed President of the Appellate Tribunal?
Under Section 361(3), the Central Government appoints as President 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.
Under Section 361(4), the Central Government may appoint one or more existing Tribunal Members as Vice-President. Under Section 361(5), the President may delegate powers or functions to a Vice-President by a general or special order in writing. Appointment as Vice-President does not, by itself, mean that all presidential powers are automatically transferred.
Relevant statutory expressions
Practical illustrations
Example 1: Appointment of a President
A retired High Court Judge who completed eight years as a High Court Judge meets the seven-year judicial service criterion in Section 361(3)(a). The Central Government must still make the appointment in accordance with the applicable law.
Example 2: Delegation to a Vice-President
The President issues a written order assigning specified administrative functions to a Vice-President. That Vice-President may perform the delegated functions under Section 361(5), within the scope of the written order.
Example 3: Filing an appeal
An assessee seeking to challenge an appealable order should consult Section 362 for appeal eligibility, limitation and fees. Section 361 governs the Tribunal's constitution and leadership, not those filing requirements.
How does Section 361 relate to other appeal provisions?
Section 356 and Section 357 identify first-appeal categories. Section 359 addresses first-appeal procedure; Section 360 concerns first-appellate powers. Section 361 establishes the Appellate Tribunal, while Section 362 addresses appeals to it and Section 363 concerns its orders.
Frequently asked questions
Does Section 361 itself provide a right to appeal?
No. Section 361 provides for the Appellate Tribunal's constitution and administration. The appealable orders and filing rules are primarily covered by Section 362.
Who constitutes the Income Tax Appellate Tribunal?
The Central Government, under Section 361(1).
What types of members sit on the Tribunal?
Section 361(1) expressly provides for Judicial Members and Accountant Members.
Can a retired High Court Judge become President?
Yes, if the Judge completed at least seven years of service as a High Court Judge and is appointed by the Central Government in accordance with the applicable law.
Can the Tribunal have more than one Vice-President?
Yes. Section 361(4) permits the Central Government to appoint one or more Vice-Presidents.
Can a Vice-President exercise the President's powers without a written delegation?
Section 361(5) specifically requires delegation by the President through a general or special order in writing for the powers and functions covered by that provision.
Official statutory text
Consult the Income-tax Act, 2025, as amended by the Finance Act, 2026 for the exact wording of Section 361 and the associated provisions.
Updated: 12 November 2026. This explanatory article is general legal information; statutory provisions and applicable judicial rulings control individual cases.