As with any other administration of law the assumption that your income tax return Assessing Officer has reported and decided your case without bias or unfairness is integral to prevent breakdown of the system. According to the tax authorities, the process of appeal is “not an inherent right” but rather a creation of statute under the Income Tax Act.
You may have your differences with these statements. Nevertheless, you are only allowed to file appeals against orders of the income tax AO that are listed in the I-T Act. After the Commissioner of Income Tax (Appeals), the Income Tax Appellate Tribunal (ITAT) is the second medium of dissent available to the taxpayer. If there is a “substantial question of law” involved you may approach a High Court and by Special Leave Petition, the Supreme Court.
Note that both the assessee and the Assessing officer can lodge an appeal before the ITAT. You must check the jurisdiction of a particular bench of this quasi-judicial body when filing a plaint.
Orders Against Which Appeals May Be Made To The ITAT:
- Orders by the Commissioner which affect the assessment, reassessment, re-computation of income tax returns, those which seek to add or reduce income tax refunds, dispute sources of income or income tax deductions, those alleging concealment of income, imposing fines, penalties or fees, those which punish noncompliance with submission requirements of documents, accounts, particulars, demands for inspection and so on. The details can be found in Sections 250, 154, 271, 271A and 272A.
- Orders by AO which bar a shipping company from receiving benefits under the tonnage tax scheme (Section 115VZC).
- Order by Commissioner disputing the status of registration of a religious or charitable trust under Section 12AA or the validity of donations received by it.
- Order or notice of rectification by Commissioner against an AO that adversely affects Government revenue.
- Orders passed by AO under Section 143(3) or 147 directing reassessment or re-computation for the current assessment year or any previous year.
- The Principal Commissioner may also direct the AO to file an appeal against the Commissioner Appeals before the Appellate Tribunal.
Time Limit for Appeal Submission
An appeal before the Tribunal must be lodged within 60 days from the date on which the order against which appeal is to be made is passed. The plaint may be made either by the tax assessee or the Commissioner/AO. In the latter case, the amount affected must be at least Rupees 10,00,000 in that particular assessment year.
The Department will also not initiate higher proceedings where a pertinent question of Constitutional law or overstepping of jurisdiction is apparent, issues of legal writ or when the subject is a tax other than income tax.
Documents and Forms to be Submitted
- Form No. 36 is to be used in triplicate for submitting appeals to the Tribunal. One copy must be certified. Apart from these, the original order of the AO in duplicate, orders pronounced by the Commissioner Appeals in duplicate, and any other documents used as evidence at the first level of proceedings in duplicate must be submitted to the ITAT. Also, if the case pertains to Section 143 read with 147 or 143(3), then the original assessment order or order of the Joint Commissioner must also be filed. Challan evidencing payment of fee must also be submitted.
- In case of organizations, the Managing Director/Partner/Principal Officer of the organization or any other equivalent representative in the absence of the former may put her signature and the organization’s seal on the requisite form.
- The party against whom the income tax return appeal has been made must submit a Memorandum of Cross Objections (Form no. 36A). This document will contain that party’s contentions. A copy of this document must be presented to the other party for signature and verification.
- The opposing party to the appeal may submit a paper book containing documents or assessments and statements therein that the party may want to reply to. This book must be indexed and numbered and must be submitted at least one day before the scheduled first hearing.
- The ITAT may prefer adjournments, stay orders on proceedings under Section 253(1) or consider additional evidence where sufficient cause is available.
- The taxpayer may be represented by an authorized person should he so desire.
- A dispute where affected sum is less than Rupees 50,00,000 may be decided by a single member bench.
- The dispute must be decided within 4 years from the end of the relevant assessment year by the ITAT.
- Amendments to an order on a question of fact presented erroneously may be made within 6 months after the judgment is passed.
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