Dear friends, as we all know, taxation is always a disputed matter between assesse and Income Tax Department. Assesse tries to take advantage of Law loopholes to save more and more tax however; the taxation department tries to curb such loopholes to prevent leakage of taxation revenue. In today’s time Income tax law allow assesse to make self-assessment of their Income Tax liability and pay the same as per prescribed method and report the same to Income Tax department on an annual basis in the form of Filing ITR.
Out of these numerous ITR, the department selects some assesse ITR for detailed scrutiny. In maximum cases, it was observed that, in the interpretation of many sections of Income Tax law, assesse has a different viewpoint and he pays tax accordingly and taxation department interpret the same section in different views, due to which Income Tax Liability arises. To give proper opportunity to assess the Income Tax law give the right to appeal against AO order before CIT (A), ITAT, High Court (On Question of Law), and Supreme Court. In this article, we will discuss appeal before CIT (A), how to file an appeal before CIT (A) and how to present the case before CIT (A).
Before the start of the Appeal process, please note that all orders of Income Tax officers are not appealable. Orders prescribed under Section 246 A of Income Tax Act, 1961 are appealable before CIT (A). So, before starting any appellant proceeding, we must ensure that our order is appealable under Section 246A of Income Tax Act. Further, note that orders which are passed by an authority subordinate to CIT (A) is appealable before CIT (A). Orders which are passed by CIT are directly appealable before ITAT.
An appeal before CIT (A) is to be made in Form -35. Form -35 is to be filed online after login into Assesse income tax portal. Process of Filing Form -35 has already been described by me in my earlier article which is accessible from this link – https://taxguru.in/income-tax/file-appeal-before-cit-appeal-procedure-faqs.html
Note– Please note that Form -35 has to be filed by the assessee only and not by an authorised person through EVC Mode or Using DSC of Assess.
Steps to be taken before filing Form -35 online
> First of all, assesse should make a file consisting, of all notices received from starting of Scrutiny assessment
> Arrange ITR Filed, computation of Income Tax return, Balance Sheet and Accounting data, if available
> Compile bank statement of the year under consideration
> Arrange copy of the reply, if any submitted to AO in the response of notice received
> Copy of order passed by AO along with Demand order passed against which we have to file Appeal
After arranging all documents, first of all, we have to check the legal validity of notice received for Scrutiny assessment. If AO has passed Assessment order against notice which is not properly served then it is ground on which you can file an appeal before CIT (A) that scrutiny assessment order is not valid in law and not properly passed by AO.
If scrutiny notice is properly served then, we have to analyze the AO order with due care and find out the drafting error and mistakes committed by AO in interpretation and application of Income Tax Sections and provisions. We have too high light the disputed matter and have to collect Court Judgements and CIT (A)/ ITAT ruling in support of our viewpoint.
After collection of Primary information, we have to File Form -35 online, which consist basic detail of assessee like Name, Address detail, mail id and mobile number, details of disputed amount against which appeal has to file, order number against which appeal has to file, ITR Filing detail, Appeal filing fee challan detail and the most important, FACT OF CASE And GROUNDS OF APPEAL.
Note: In case of online Form -35, facts of the case and grounds of appeal has to be filed within 1000 Characters, so they are to be prepared with adequate attention that, in summarised form, they consist all the necessary details which help CIT (A) to give a glance of the case.
Preparation of Facts of the case and Grounds of Appeal in detail
In the present time, when our appeal is accepted by CIT (A), then we have to present before CIT (A) on the specified date to present our case. At that time we have to give detailed Facts of the case and Grounds of appeal along with supporting documents like documents which are not considered by AO, at time of Assessment, Ruling and Judgement of CIT (A), Courts similar to our case, if any available.
How to Prepare Facts of the Case and Grounds of Appeal
Please note that there is no specified format for Facts of the case and Grounds of Appeal. There drafting will vary on case to case basis. A fact of the case is like the introduction of the case. Here you have to give an overview of case, basis on which case is selected for scrutiny. Details of disputed matter and details submitted by assessee and action were taken by AO.
Grounds of Appeal
In grounds of appeal, we have to explain the case in detail and have to present the reason, if any document is not submitted and documents if any rejected by the officer. Here we have to explain in detail the disputed amount/matter and have to give our explanation, how if our documentation and viewpoint is accepted, then disputed matter will be solved. After consideration the all aspect from assesse point and Assessing Officer, the CIT (A) will adjudicate their decision. If assessee is still not satisfied with CIT (A) decision, he has the option to file a further appeal before ITAT.
Condonation for late filing of CIT Appeal: As per law, assessee has to file an appeal before CIT (A) within 30 days of service of the order. But due to some reason, assessee is not able to file CIT (A) within 30 days, CIT Appeals has the power to condone the day in filing appeal however, there must be sufficient ground for the delay in filing appeal supported with necessary evidence.
This article is for the purpose of information and shall not be treated as a solicitation in any manner and for any other purpose whatsoever. It shall not be used as a legal opinion and not be used for rendering any professional advice. This article is written on the basis of the author’s personal experience and provision applicable as on the 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 other readers.
The Author “CA. Shiv Kumar Sharma” can be reached at mail –[email protected] and Mobile/Whatsapp – 9911303737/ 9716118384