APPEAL TO INCOME TAX DEPT. BEFORE CIT(A)

There are various recourse available to assessee to challenge the orders passed by the Assessing Officer at the time of assessment. The Income Tax Law provides recourse in the form of revision or by filing an appeal. The various stages of filing appeal is described below –

Filing of Appeal to Commissioner of Income Tax Appeals – First Stage

This article describes various provisions relating to filing of Income Tax Appeal before CIT(A) in depth. For the sake & convenience of readers, we have prepared the article in the form of Questions and Answers.

Q.1 Against which orders, appeal to CIT(A) can be made –

Appeal can be filed before Commissioner (Appeals), when a tax payer is adversely affected by Orders as under passed by various Income tax authorities, a list of such few orders are as under –

• Intimation issued under Section 143(1) making adjustments to the returned income
• Scrutiny assessment order u/s 143(3) or an ex-parte assessment .order u/s 144, to object to income determined or loss assessed or tax determined or status under which assessed
• Re-assessment order passed after reopening the assessment u/s 147/150
• Search assessment order u/s 153A or 158BC
• Rectification Order u/s 154/155
• Order u/ s 163 treating the taxpayer as agent of a non resident

Q.2 What is the Form of Appeal and how to file the same?

Every appeal to the Commissioner (Appeals) is to be filed in Form No. 35 online. Form 35 contains basic information like name and address of taxpayer, Permanent Account Number (PAN), assessment year, details of the order against which appeal is filed etc.

Along with that, Grounds of Appeal & Statements of Facts have to be furnished covering brief facts and ground of appeal of the case.

Q.3 What is the fees for filing Appeal?

Fees to be paid before filing appeal to the Commissioner (Appeals) depends upon total income determined by the Assessing Officer. Fees as under are to be paid and proof of payment of fee is to be attached with Form No. 35

S.No.Total Income determined by the Assessing OfficerAppeal Fee1Less than Rs. 1,00,000/-Rs 250/-2More than Rs.1,00,000/- but less than Rs.2,00,000/-Rs 500/-3More than Rs. 2,00,000/-Rs 1000/-

Q.4 By when an appeal can be filed?

Appeal is to be filed within 30 days of the date of service of notice of demand relating to assessment or penalty order or the date of service of order sought to be appealed against, as the case may be. The Commissioner (Appeals) may admit an appeal after the expiration of period of 30 days, if he is satisfied that there was sufficient cause for not presenting the appeal within the period of 30 days. Application for condoning the delay citing out reasons for the delay along with necessary evidences & an affidavit signed by the appellant confirming the condonation should be filed with Form No. 35 at the time of filing of appeal. Commissioner (Appeals) can condone the delay in filing the appeal in genuine cases with a view to dispense substantive justice.

Q.5 Whether the assessee can file additional evidence during the course of appeal?

During appeal proceedings, the tax payer is not entitled to produce any evidence, whether oral or documentary other than what was already produced before the Assessing Officer. Commissioner (Appeals) would admit additional evidence filed only in following situations:

• where the Assessing Officer has refused to admit evidence which ought to have been admitted
• where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to be produced by the Assessing Officer
• where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal
• where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

Q.6 How to know the Proper Officer with whom appeal can be filed?

The notice of demand clearly specifies the name and jurisdiction of the officer with whom appeal can be filed.

Q.7 Whether appeal has to be filed online or an acknowledgement has to be forwarded offline also?

After filing appeal online, it is advisable to submit the following documents offline

• Form 35
• Grounds of Appeal
• Statement of Facts
• Acknowledgement of filing Form 35
• Copy of Appeal Fees Challan Paid

Q.8 Whether demand raised by Assessing Officer has to be paid before filing appeal?

CBDT In this regard has issued an office memorandum in July 2017 to allow a pre deposit of 20%(previously 15%) of demand for filing appeal to CIT(A)

However Supreme Court in a case held that, the tax authorities cannot take recourse to the office memorandum issued by CBDT and demand minimum of 20% of the disputed demand for granting all the stay matters. The SC clarified that the Commissioners have wide powers as a quasi-judicial authority to grant stay of demand on payment of stay amount lesser than 20% of the disputed tax demand. The tax authorities have to analyse the merits of each individual case and depending on the facts, can grant stay at a lesser amount.

Q.9 What will be the case where assessee has not received the assessment order and notice of demand?

Section 282 of the Income-tax Act, 1961, lays down the mode of service of notices. According to it, any notice under the Income-tax Act has to be served on the person named therein either by post or as if it were a summons issued by the court under the Code of Civil Procedure, 1908. Order V of rule 19A of the Code of the Civil Procedure, provides for simultaneous service by post in addition to personal service. Under Order V, rule 17 of the Code, the affixation can be done only when the assessee or his agent refuses to sign the acknowledgement or cannot be found. The notice sent by the registered post should be sent along with the acknowledgement due.

So simply speaking, if the assessee has not received the order, government should not have any proof of service of notice. Also now a days, e-assessment is going on, in that case also any assessment served online in efiling potal shall not be deemed to be proper service since it is not in consonance with Section 282.

Assessee in these cases can visit to concerned AO, and on payment of prescribed fees, he can inspect the file and take photocopies of desired documents like assessment order, notice of demand etc and date of service shall be the date on which he inspect the file.

Disclaimer: Anything written in this document is the personal understanding of the author. The author shall not be responsible for any of the decisions made based on the contents of this document.