An appeal is the right of entering a superior Court and invoking its aid to redress an error of the Lower Authorities or Court.

Appellate proceedings are taken to rectify erroneous decision by an authority or the Court by going to the higher court or authority. It amounts, in a sense a complaint to a higher forum that the decision of the subordinate officer or Tribunal is erroneous and liable to be set aside. It embraces all proceedings whereby a superior court is called upon to review, revise, affirm, reverse or modify the decision of an inferior court.

The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted and acted upon by some other court, whose judgment or proceedings are to be revised.

Though to a certain extent the appellate or revisional proceedings are similar, there is a marked distinction between the two. Precisely, an appeal is a continuation of a suit or proceedings wherein the entire proceedings are again left open for consideration by the appellate authority which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations, whereas in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statutes expressly confers on it that power. That limitation is implicit in the concept of revision.

A Creature of Statute
An appeal is a creature of a statute. The right to appeal is a statutory right. It is not an inherent right. Therefore, unless a statute specifically provides that an appeal lies against, the specific action or an order of authority, an appeal does not lie. To put it differently, a person has no inherent right to appeal and unless it is specifically conferred by the statute, no redress by way of appeal is available. It cannot be claimed as a matter of right. It is open to the Legislature to give or not to give a right of appeal against the decision by the authority under the Act and therefore, no appeal lies unless it is provided by the statute. As a right to appeal is not an inherent right, normally absence of right to appeal does not make the provision unconstitutional. The only thing is that the absence of right to appeal, may be taken as one of the factors while deciding whether a particular provision of law is constitutional or not. As such, normally an assessee cannot complain if the Legislature does not provide any right of appeal against the tax imposed on him. Thus, an appeal being a creature of the statute would not lie unless it is provided by the statute, but the right so conferred cannot be taken away merely because some remedy is also available to the assessees to redress the wrong.

Right to Appeal – Substantive right
A right to appeal is a substantive right. The right to appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by the inferior court.

Though procedure does surround an appeal the central idea is a right. It has been recognised that a right to appeal gives a substantive right vested in the assessee at the time of institution or original proceedings. Any change in the law relating to appeals, after institution of original proceedings, which adversely touches this vested right is presumed not to be retrospective.

As such, unless specifically provided any abolition or restriction or new conditions imposed on ones’s exercise of right to appeal will not apply to proceedings already initiated at the original stage unless the statute specifically provides that the change will have retrospective operation, that is, they will govern the pending proceedings also.

The Honourable Supreme Court in the case of Garikapati vs. Subbiah Choudhry - AIR 1957 SC 540 has laid down the following five propositions:

1. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding;

2. the right of appeal is not a mere matter of procedure but is a substantive right;

3. the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit;

4. the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal;

5. this vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. It must be noted that the above principle applies not only to the abolition of appeal, but it applies to imposition of any restrictions.

A Right of Appeal & Forum of Appeal
A right of appeal, however, cannot exist without the existence of a Court to which the appeal is to be taken; and a litigant has no right to contend that a Tribunal, before whom he should have taken an appeal when he instituted the suit, should not be abolished, for the Legislature is fully competent to enact a law of that kind". It, therefore, follows that if the Court, to which an appeal lies, is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgement of appeals, the vested right perishes. In other words, if the Legislature after the institution of legal proceeding abolishes simpliciter the Court to which the appeals would have been preferred according to the law then in force and provides for no Court in substitution, it will be understood that the right of appeal is either taken way by implication or change in the forum.

Though the right to appeal to a particular authority or superior court is a vested right, no party has a vested right to have his appeal heard by a specified number of judges of that Court and a change in law in that matter will be regarded merely as a change in procedure; and therefore retrospective. Again when existing civil courts are abolished and new civil courts are created by the new law, an appeal against a decision in a pending suit decided by the new civil court, to which it is transferred will lie to the court which has power to hear appeals under the new law.

Now, the interesting issue is when the proceedings at the assessment stage have been commenced? One view is, when the person files a return the proceedings are not initiated at that stage . Under the provisions of the Act the authority may accept the return as correct and complete. However, if the authority is not satisfied as to the correctness of the return and calls for evidence by issue of a notice under section 143(2), surely a controversy arises involving a proposition by the assessee and an opposition by the department. For the purposes of the accrual of the right of appeal the critical and relevant date is, thus, the date of initiation of assessment proceedings, that is the date of issue of S. 143(2) note.

The other view is that when the return is filed the proceedings are initiated. Therefore, the crucial date is the date of filing of the return and not the date of issuance of the notice by the Officer. The Supreme Court itself has taken a different views. The better view seems to be that once the return is filed the proceedings are initiated. The law prevailing on the date of initiation of assessments proceedings governing the right to appeal and conditions attached to the right to appeal will govern the proceedings. Any subsequent change will not affect the right to appeal in respect of those proceedings. To illustrate, if as per the law stood on the date of initiation of the proceedings one would prefer an appeal without payment of any tax and subsequently the law changes before the assessment order is passed that one has to pay the admitted tax in respect of the appeal against the Asst. order, the subsequent changed condition that one has to pay admitted tax will not apply, to the filing of the appeal. Therefore, in such a case the appeal could be filed without payment of tax as provided by the subsequent amendment.

Provisions for Appeals to be liberally construed
The right of appeal should be liberally construed. The general proposition that tax laws must be strictly construed does not apply to those provisions of the law which governs right to appeal. In fact, it has been held again and again that right to appeal should be very liberally construed. The provisions granting the right of an appeal and the conditions attached thereto are given liberally construction. In other word, the statute pertaining to right of appeal had to be given a liberal construction in a sense that they are remedial in nature. If two constructions are possible, a construction of denial of right to appeal must be rejected and the construction favouring the existence of right must be accepted. Our Courts recognise the rule that an appeal of a cause is a valuable right to the litigant, and in the absence of unmistakable indication to the contrary, statutes regulating appeals are given liberal construction. It is also recognised that an appeal is a remedy that is favoured in law and an important right, which should never have been denied, unless its forfeiture or abandonment is conclusively shown, and in case of doubt, an appeal should always be allowed rather than denied.

Tax appeal vs. Civil Appeal
An appellate authority under taxing enactments sits in appeal. What it does, functionally, is only to adjust the assessment of the appellant in accordance with the facts on the record and in accordance with the law laid down by the legislature. An appeal is a continuation of the process of assessment, and an assessment is but another one for adjustment of the tax liability to accord with the taxable event in the particular tax-payer’s cases. There can be no analogy or parallel between a tax appeal and an appeal, civil cases. A civil appeal. like a law suit in the court of first instance, that is to say a controversy or tussle over mutual rights and obligation between contesting litigants ranged each other as opponents A tax appeal is quite different. Even as the assessing authority is not the tax-payer’s "opponent", in the strictly procedural sense of the terms, so too the appellate authority sitting in appeal over the assessing authority's order of assessment is not strictly an arbitral tribunal deciding a contested issue between two litigants ranged on opposite sides. In a tax appeal, the appellate authority is very much committed to the assessment process. The appellate authority can itself enter the arena of assessment, either by pursuing further investigation or causing further investigation to be done. It can do so on its own initiative, without being prodded by any of the parties. It can enhance the assessment, taking advantage of the opportunity afforded by the tax-payer’s appeal, even though the appeal itself has been mooted only with a view to a reduction in the assessment. There are special exceptional attributes of the jurisdiction of a tax appellate authority. These attributes underline the truth that the appellate authority is no different, functionally and substantially, from the assessing authority itself. (State of Tamil Nadu vs. Arulmurugan & Co. (1982) 521 STC 381, 392 (Mad-FB).

The primary purpose of the Income-tax Act is to levy and collect the income-tax, This is based on the earlier principle, which has been incorporated as a veritable constitutional provision in Article 265, that no tax can be levied or collected save under authority of law. The task of an appellate authority under the taxing statute, especially a non-departmental authority like the Tribunal, is to address its mind to the factual and legal basis of an assessment for the purposes of properly adjusting the tax-payer’s liability to make it accord with the legal provisions governing his assessment. Since the be-all and end-all of the statutory provisions, especially those relating to the administration and management of incomes-tax, is to ascertain the tax-payer’s liability correctly, if it were possible, the various provisions relating to appeal, second appeal reference and the like can hardly be equated to a lis or dispute arises between the two parties in a civil litigation. Although the income tax statute makes the Department or its officers figure as parties in appeal proceedings, they are not in the strict sense what are called by American writers as parties to adversary proceedings. This is so, because the very object of the appeal is not to decide a point raised at a dispute but any point which goes into the adjustment of the tax-payer’s liability. Under Indian fiscal jurisprudence, one may regard the appellate authorities as exercising quasi-judicial functions in the same sense as a taxing officer does. But, even so, the proceedings before them lacks the basic elements of adversary proceedings. It, therefore, follows that the discussions, the scope of the appellate jurisdiction of the Tribunal and other authorities under the tax code cannot be pursued by drawing a parallel to civil litigation with particular reference to appeals from redress, and the like. The insistence on one party to the appeal being entitled the fruits of finality, as it is called, and the appellate authority being confined to the subject-matter of the appeal are all ideas which might have relevance if the discussion centres on purely civil litigation and such like adversary proceedings as in an industrial dispute. But in a cases where the Revenue is all the while a party, in a manner of speaking, and is also at the same time, an authority vested with the responsibilities of drawing up the assessment and laying down the correct liability, it would not be in accord with the scheme of the Act, to impose restrictions on the ambit and the power of the Tribunal by such like notions as finality, subject-matter of the appeal, and the like – CIT vs. Indian Express (Madurai) Pr. Ltd. (1983) 140 ITR 705, 722(Mad).

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