Dear readers, as we all know, Income Tax department has started faceless assessment of all Scrutiny cases few years back. Use of technology in case of scrutiny cases gives us a comfort to give reply of all department queries at our convenience. But, this technology is becoming hurdle for senior citizens and those who are not technology savvy. Further, in case of faceless assessment, case is decided on the basis of documents produced and how effectively we convey our point to Income Tax department.
In some cases, it is observed that, even after submitting requisite documents with Income tax officer, the officer does not consider that document while assessment proceedings and demand order will be passed against the assessee. Income Tax department has taken many steps to avoid such kind of error while doing faceless assessment but this process cannot be 100% error free as of now. To know more about faceless assessment proceedings, you can refer my earlier blog from following link: Faceless Assessments under Income Tax Act, 1961 – At a Glance
A tax payer aggrieved by any of the orders passed by the Income tax authorities, which are specified as ‘appealable orders’ in the Income Tax Act, 1961, has a right to file an appeal before the Commissioner of Income Tax (Appeals). Taxpayers can file appeal against the orders of assessing officer before the CIT (A), having, jurisdiction over the taxpayer. Appeal before a CIT (A) can be filed only in the prescribed form number 35 and is to be accompanied by the proof of payment of prescribed appeal fee and original copy of the notice of demand issued by the assessing officer under section 156 and a copy of the order. Appeal filing is an online process which can be done after login into assessee account.
Here, to understand better, we will take a real case study, where Mr. A is a retired person, who is retired from PSU and get a corpus say Rs.75,00,000/- in the form of EPF, Gratuity, leave encashment etc and being senior citizen and unawareness of law, he does not file his ITR. Later, he received notice U/s 148A(a) and Section 148 of Income Tax Act, 1961. In response to this Mr. A Filed his ITR and provide documents that are available with him. One of the documents that are asked is Form 16 issued by employer but Mr. A is not able to provide the same because it is not provided by employer and he is not able to visit his employer office due to his age and health issues in Family. But he provided Salary slip issued by employer as documentary proof which shows all calculations but assessing officer ignore this evidence and raise a demand of Rs.8,00,000/-. Further, penalty proceedings are also initiated amounting to Rs.16,00,000/-
Here the mistakes did by Mr. A are:
- Non Filing of ITR even he has received such high value transaction
- Taking the case lightly and responding to notices by himself without knowledge of law
- Providing half evidences and not explaining the reason of providing less documents in comparison to as required by officer
- No objection raised on draft order issued by officer before passing of final assessment order
Now, Mr. A has only 2 Choices, either pay Rs.24,00,000/- as demand or raise the issue before CIT(A) within the specified time period and following the specified process of appeal filing like Filing appeal in Form 35 online, pay the requisite appeal fees and submit the required documents along with Form 35.
The most crucial part of Filing Form 35 is Facts of the case and Grounds of the appeal. Here, full focus required to find out the mistakes, if any committed by officer while drafting assessment order or not following the sequence of assessment proceedings. Further, we have to highlight the documents that are submitted by us or any other new evidence that we want to present that may change the case proceedings, which we have submitted with the officer but the same is not considered while doing assessment.
Drafting Facts of the case and Grounds of appeal requires analyzing skills and knowledge of law. This is very crucial point, here we have to highlight the mistake committed by officers and facts that are ignored, which if considered then fate of case will be different. For educational purpose, one point that can be used as Grounds of appeal is as follows:
“The primary ground of appeal is the non-consideration of critical evidence submitted by the assessee during the assessment proceedings. The September 2017 salary slip (Showing Full & Final settlement of all dues of the assessee by the employer at the time of retirement), which meticulously outlines calculations related to exempt income under Section 10 and the deduction claimed under Section 80C, was inexplicably overlooked by the assessing officer. This oversight has resulted in an unjust and inflated demand”
Above is an illustration of Grounds of appeal. There is not fixed format of Facts of the case and Grounds of the appeal but the same must be drafted in professional language and must convey our view point to the appellant authority. Each case is unique and requires difference kinds of drafting skills.
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Disclaimer: This article is for the purpose of information and shall not be treated as solicitation in any manner and for any other purpose whatsoever. It shall not be used as legal opinion and not to be used for rendering any professional advice. The author will not be held responsible for any lose, if occur after using above information. Kindly consult your professionals before taking any action. This article is written on the basis of author’s personal experience and provision applicable as on date of writing of this article. Adequate attention has been given to avoid any clerical/arithmetical error, however; if it still persists kindly intimate us to avoid such error for the benefits of others readers. The Author “CA. Shiv Kumar Sharma” can be reached at mail –shivsharma786@gmail.com and Mobile/WhatsApp–9911303737
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