ITAT Appeal After the Income-tax Act 2025: Which Act, Which Form and What Limitation Applies

If you are heading to the Income Tax Appellate Tribunal now, the first question is not about the merits but about the statute. An ITAT appeal that touches the Income-tax Act 2025 transition can be governed by the old 1961 Act, the new 2025 Act, or, in practice, a little of both. The answer turns on a test many practitioners are still getting wrong: the tax year the dispute concerns, not the date on which the order happens to be passed. This article explains the test, the form, the limitation period and the traps. It is a companion to our complete guide to the income-tax appeal ladder.

The Test that Decides Which Act Applies

The Income-tax Act 2025 (Act 30 of 2025) came into force on 1 April 2026 and repealed the Income-tax Act 1961. The repeal is not a clean break. Section 536 of the new Act saves the old law for work in progress, and its clause (2)(c), as reproduced in the Central Board of Direct Taxes’ transition FAQs of July 2026, says that the provisions of the repealed Act continue to apply to any proceeding pending on commencement “and to any proceedings initiated on or after the 1st April, 2026 (including notices, assessment, reassessment, recomputation, rectification, penalty, reference, revision and appeals) in respect of any tax year beginning before the 1st April, 2026”, carried out as per the procedure in the repealed Act. Clause (2)(e) adds that proceedings pending on commencement, “by way of an application, appeal, reference or revision”, continue and are disposed of “as if” the 2025 Act had not been enacted.

Read together, these provisions establish a two-part test for determining which statute governs an ITAT appeal under the Income-tax Act 2025 or the repealed 1961 Act, the test has two limbs. First, was the appeal already pending before the Tribunal on 1 April 2026? If so, the 1961 Act continues to govern it. Second, if not, ask which tax year the dispute is about. The 2025 Act speaks of a “tax year”, which replaces the old assessment year and previous year. A tax year that began before 1 April 2026 means financial year 2025-26 and everything earlier (assessment year 2026-27 and before). For those years, proceedings “initiated” even after 1 April 2026, appeals expressly included, run under the repealed Act. Only a dispute about a tax year beginning on or after 1 April 2026 is a 2025-Act appeal.

A hypothetical shows the point. A company’s assessment for financial year 2024-25 is completed in March 2026 and the first appeal is decided in a faceless order in August 2026. The order is passed after the new Act commenced, yet the dispute concerns a pre-April-2026 tax year, so the second appeal to the Tribunal is a 1961-Act appeal. A first appeal against an assessment for financial year 2026-27, decided in 2027, would be a 2025-Act appeal.

One caution for readers of earlier commentary, including our own pillar guide: a rule of thumb that says “was the order passed before or after 1 April 2026?” is a shorthand that can mislead. The text of clause (2)(c) keys the position to the tax year. We have not found a reported decision of a High Court or the Tribunal that tests this reading, so treat it as the better reading of the statute, not a settled holding.

Limitation: Two Months from the End of the Month

This is where an old assumption trips people up. The familiar sixty-day period under section 253(3) of the 1961 Act is gone. The official text of the section now provides that every appeal “shall be filed within two months from the end of the month in which the order sought to be appealed against is communicated”, and the Income Tax Department’s own page records the amendment as made by Act 15 of 2024 (the Finance (No. 2) Act 2024) with effect from 1 October 2024. Section 362(3) of the 2025 Act uses materially the same words. So for an order communicated on or after 1 October 2024, the period is identical whichever Act governs.

The practical arithmetic is simple. An order communicated on 10 October gives time until 31 December; an order communicated on 31 October gives the same date. The period runs from communication, not from the date the order bears, which matters in faceless proceedings where the order may be uploaded, e-mailed and posted on different days. We found no reported authority fixing which of those events is the “communication” for a faceless order, so the safe course is to count from the earliest one and keep proof of each.

Cross-objections must be filed within thirty days of receiving notice of the other side’s appeal. Both Acts allow the Tribunal to admit a late appeal or cross-objection if it is satisfied there was “sufficient cause” for the delay (section 253(5); section 362(5)). That is a discretion, not a right.

Form 36, Form 115 and the Fee

Form 115, prescribed under Rule 193 of the Income-tax Rules, 2026, replaces Form 36 under Rule 47 of the old Rules for appeals governed by the 2025 Act. For an ITAT appeal governed by the 1961 Act, the savings provision preserves the old procedure, which points to Form 36 and the Income-tax (Appellate Tribunal) Rules, 1963. However, no official clarification has been identified specifying which form must be used for such appeals following the replacement of the old Rules. Until the position is clarified, check the Tribunal’s e-filing portal for the form accepted for the relevant tax year. If only Form 115 is available, consider filing a covering note explaining that the appeal is governed by the 1961 Act read with Section 536(2)(c) of the 2025 Act.

The Tribunal’s own rules have also moved. A notification of 19 December 2025 (No. 71-Ad(AT)/2025) amended the 1963 Tribunal Rules to require the memorandum of appeal to be digitally signed, appeals to be e-filed, and an e-mail address and mobile number to be given for service. It did not rewrite the rule on grounds of appeal. The practical result is that a 1961-Act appeal heard in 2026 is being run on digitally amended 1963 Rules.

The fee is in the statute, not the form. Under section 362(6), it is Rs 500 where total income is Rs 1,00,000 or less; Rs 1,500 where it is above that but not above Rs 2,00,000; and one per cent of assessed income, capped at Rs 10,000, above that; Rs 500 for orders not involving an assessed income. Cross-objections and appeals by the Department attract no fee. The 1961 Act’s scale in section 253(6) is the same in outline.

Rectification and the High Court Follow the Appeal

Because clause (2)(c) lists “rectification”, “reference” and “appeals” together, the sensible reading is that a Tribunal order in a 1961-Act appeal remains within the old Act at every later step. A rectification application lies under section 254(2) of the 1961 Act, within six months from the end of the month in which the order was passed, and a High Court appeal lies under section 260A on a substantial question of law, within 120 days. The 2025 Act’s equivalents are section 363(2) (rectification, six months) and section 365 (High Court, 120 days). The six-month period for rectification is counted from the month in which the order was passed, not communicated, so it can start running before the order reaches you.

Where the Law Cuts Both Ways

The assessee’s best argument on any procedural slip is that procedure is the handmaid of justice: a Tribunal can condone delay for sufficient cause, and an appeal filed in good faith on the wrong form should not be dismissed for the error. The Revenue’s best answer is that limitation is statutory, that sufficient cause is for the assessee to prove, and that a party who chose to wait for clarity on form took the risk. Neither side can point to a decided case on the transition point yet. The same holds for the “tax year” reading: it is the more natural reading of clause (2)(c), but an assessee who guesses wrong on the governing Act and files late has no authority to fall back on.

Frequently Asked Questions

Does the Income-tax Act 1961 or 2025 Govern Your ITAT Appeal?

It depends on the tax year the dispute concerns, not on the date of the order. Under the savings clause in section 536 of the Income-tax Act 2025, proceedings, including appeals, for any tax year beginning before 1 April 2026 continue under the repealed 1961 Act and its procedure, even if the order appealed against is passed after that date. Disputes for later tax years fall under the 2025 Act.

How long do I have to appeal to the ITAT?

Two months from the end of the month in which the order is communicated. Section 253(3) of the 1961 Act has said so since 1 October 2024, and section 362(3) of the 2025 Act says the same. The old sixty-day rule applies only to orders communicated before 1 October 2024. A Tribunal can condone delay for sufficient cause.

Is the appeal filed on Form 36 or Form 115?

Form 115 is the form for appeals under section 362 of the 2025 Act. For a 1961-Act appeal the savings clause keeps the old procedure, which points to Form 36, but we have not located an official instruction that says so in terms. Check what the Tribunal’s e-filing portal accepts at the time of filing and never let the question of form cause a delay.

What is the ITAT appeal fee?

Section 362(6) fixes it by reference to total assessed income: Rs 500 where total income is Rs 1,00,000 or less, Rs 1,500 where it is above Rs 1,00,000 but not above Rs 2,00,000, and one per cent of assessed income, capped at Rs 10,000, where it is above Rs 2,00,000. Cross-objections and appeals by the Department carry no fee.

Do rectification and the High Court appeal also follow the old Act?

For a tax year beginning before 1 April 2026, the savings clause expressly lists rectification and appeals among the proceedings that continue under the repealed Act. The natural reading is that a rectification application and a High Court appeal on a substantial question of law follow sections 254(2) and 260A of the 1961 Act, not sections 363 and 365 of the 2025 Act.

Sources

• Income-tax Act, 2025 (Act 30 of 2025), section 536(1), repeal — Income Tax Department.
• Central Board of Direct Taxes, FAQs on transition provisions of the Income-tax Act, 2025 (July 2026), reproducing section 536(2)(c) and (e) — incometaxindia.gov.in.
• Income-tax Act, 1961, section 253, as amended by the Finance (No. 2) Act 2024 (Act 15 of 2024) w.e.f. 1 October 2024 — Income Tax Department.
• Income-tax Act, 2025, section 362 (appeals to the Appellate Tribunal) — Income Tax Department; section 363 — Income Tax Department.
• Form 115 and Form 115 FAQs, Income-tax Rules, 2026 (Rule 193) — Income Tax Department.
• Income-tax (Appellate Tribunal) Amendment Rules, 2025, Notification No. 71-Ad(AT)/2025, 19 December 2025 — LiveLaw report.
• Income-tax Act, 1961, sections 254(2) and 260A — India Code.