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APPEAL TO COMMISSIONER OF INCOME-TAX (APPEALS) i.e. CIT (A)

Article discusses about Appealable order, Time-limit for presenting an appeal, Form of appeal, Signature to the appeal, Pre-deposit of tax, Documents to be submitted for appeal, Fees, Procedure of the appeal, Filing of additional evidences, Decision of the Commissioner of Income-tax (Appeals), Disposal of appeal,

Introduction

Introduction

At times it may happen that the taxpayer is aggrieved by an order of the Assessing Officer. In such a case he can file an appeal against the order of the Assessing Officer before the Commissioner of Income-tax (Appeals).

In this part you can gain knowledge about various provisions relating to appeals to Commissioner of Income-tax (Appeals).

Appealable order

The Commissioner of Income-tax (Appeals) is the first appellate authority. Section 246A specifies the orders against which an appeal can be filed before the Commissioner of Income-tax (Appeals). The list of major orders against which an appeal can be preferred before the Commissioner of Income-tax (Appeals) is given below:

  • Order passed against the taxpayer in a case where the taxpayer denies the liability to be assessed under Income Tax Act.
  • Intimation issued under section 143(1)/(1B) where adjustments have been made in income offered to tax in the return of income.
  • Intimation issued under section 200A(1) where adjustments are made in the filed statement.
  • Assessment order passed under section 143(3) except in case of an order passed in
  • pursuance of directions of the Dispute Resolution Panel
  • An assessment order passed under section 144.
  • Order of Assessment, Re-assessment or Re-computation passed after reopening
  • the assessment under section 147except an order passed in pursuance of directions
  • of the Dispute Resolution Panel
  • An order referred to in section 150.
  • An order of assessment or reassessment passed under section 153A or under
  • section 158BC in case of search/seizure.
  • Order made under section 92CD(3).
  • Rectification order passed under section 154 or under section 155.
  • Order passed under section 163 treating the taxpayer as agent of non-resident.
  • Order passed under section 170(2)/(3) assessing the successor of the business in
  • respect of income earned by the predecessor.
  • Order passed under section 171 recording the finding about partition of a Hindu Undivided Family.
  • Order passed by Joint Commissioner under section 115VP(3) refusing approval to opt for tonnage-tax scheme to qualifying shipping companies.
  • Order passed under section 201(1)/206C(6A) deeming person responsible for deduction of tax at source as assessee-in-default due to failure to deduct tax at source or to collect tax at source or to pay the same to the credit of the Government.
  • Order determining refund passed under section 237.
  • Order imposing penalty under  section(s) 221 / 271 / 271A / 271AAA / 271F / 271FB / 272A / 272AA / 272B / 272BB / 275(1A) / 158B FA(2) / 271B / 271BB / 271C / 271CA / 271D / 271E / 271AAB.
  • Order imposing a penalty under Chapter XXI.
    • Order passed by the AO under section 239A

Appeal

Time-limit for presenting an appeal

As per Section 249(2), appeal should be presented within 30 days of the following date:

(a) Where the appeal relates to any assessment or penalty, the date of service of notice of demand relating to the assessment or penalty.

(b) In any other case, the date on which intimation of the order sought to be appealed against is served.

The Commissioner of Income-tax (Appeals) may admit belated application on sufficient cause being shown. Application for condonation of delay in filing the appeal, giving the reasons for the delay, along with necessary evidences should be filed with Form No. 35 (i.e., form of appeal). The Commissioner of Income-tax (Appeals) can condone the delay in filing the appeal if genuine reason exists for delay.

Form of appeal

The CBDT had substituted the Rule 45 of Income-tax Rules, 1962 relating to filing of Form of appeal to CIT(A) vide Income-tax (3rd Amendment) Rules, 2016.

By virtue of such amendment, the CBDT had issued a new Form No. 35 for filing an appeal before CIT(A). Further, e-filing of Form has been made mandatory for persons for whom e-filing of return of income is mandatory.

Signature to the appeal

The form of appeal, the grounds of appeal and the form of verification are to be signed and verified by the person authorised to sign the return of income under section 140 as applicable to the taxpayer. In other words, form of appeal is to be signed and verified by following:

(1) In case of appeal by an individual taxpayer, by the individual taxpayer himself or
by a person duly authorised by him who is holding a valid power of attorney

(2) In case of a Hindu Undivided Family, by the Karta of the family or if Karta is absent from India or is not capable for signing, by any other adult member of such family.

(3) In case of a company, by the Managing Director or if Managing Director is not available or where there is no Managing Director by any director of the company.

(4) In case of foreign company, by a person who holds a valid power of attorney from such company

(5) In case of a firm, by the Managing Partner or if Managing Partner is not available or where there is no Managing Partner by any partner (not being a minor)

(6) In case of a LLP, by the Designated Partner or if Designated Partner is not available or where there is no Designated Partner by any partner.

(7) In case of a Local Authority, by the Principal Officer thereof

(8) In case of a Political Party, by the Chief Executive Officer of such party

(9) In case of any other Association, by the Principal Officer thereof or by any member of the Association.

(10) In case of any other Person, by that Person or by some person competentto act on his behalf.

Pre-deposit of tax

Before filing the appeal, the taxpayer should pay the tax determined as per the return of income filed by him.

If no return of income is filed, the taxpayer should pay tax equal to the amount of advance tax payable by him. However, on application made by the taxpayer, the Commissioner of Income-tax (Appeal) may exempt the taxpayer from payment of tax before filing the appeal. Such benefit is granted if good and sufficient reason is proved by the taxpayer for non-payment of tax before filing the appeal.

Documents to be submitted for appeal

  • Form No. 35 (including statement of facts and grounds of Appeal) – in duplicate. However, e-filing has been made mandatory for persons for whom e-filing of return of income is mandatory w.e.f 1/3/2016.
  • One certified copy of order, appealed against.
    Notice of demand in original.
  • Copy of challans of fees the details of the challan (i.e., BSR code, date of payment of fee, serial number and amount of fee) are required to be furnished in case of e-filing of form of appeal.

Fees

The fees for filing the appeal before the Commissioner of Income-tax (Appeals) are as follows :

Where assessed income (i.e. total income as determined by the Assessing Officer) is :

More than Rs. 1,00,000 but less than Rs. 2,00,000:- Rs. 500

More than Rs. 2,00,000:-  Rs.1,000

Where subject-matter of appeal relates to any other matter, i.e., other than above:-Rs. 250.

Procedure of the appeal

  • After the receipt of Form no. 35, the Commissioner of Income-tax (Appeals) will fix the date and place for hearing the appeal.
  • The date and place will be communicated to the taxpayer and to the Assessing Officer against whose order appeal is preferred. The communication will be made by issuing a notice to both the parties.
  • In the appeal proceedings the taxpayer or the Assessing Officer can either appear personally or can appear through an authorized representative.
  • The Commissioner of Income-tax (Appeals) would hear the appeal and may adjourn the appeal from time-to-time.
  • Before passing the order, the Commissioner of Income-tax (Appeal) may make such further inquiries as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result to him.
  • During the course of appeal, the Commissioner of Income-tax (Appeals) may allow the taxpayer to go into additional grounds of appeal (*). However, additional grounds will be accepted only if the Commissioner of Income-tax (Appeals) is satisfied that omission of these grounds from the form of appeal was not willful or unreasonable.

(*) Additional grounds means grounds which are not specified in Form no. 35

Filing of additional evidences

During the appeal proceedings before the Commissioner of Income-tax (Appeals), the taxpayer is permitted to produce only those evidences (whether oral or documentary) which were produced by him before the Assessing Officer. In other words, the Commissioner of Income-tax (Appeals) will not permit the taxpayer to produce any additional evidences which were not produced by him before the Assessing Officer. However, in following circumstances additional evidence will be accepted by the Commissioner of Income-tax (Appeals)

(a) Where the Assessing Officer has refused to admit evidence which ought to have been admitted; or

(b) Where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to be produced by the Assessing Officer; or

(c) Where the appellant was prevented by sufficient cause from producing any evidence before the Assessing Officer which is relevant to any ground of appeal; or

(d) 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.

  • Normally, the taxpayer has to make an application for acceptance of additional evidences. In other words, the additional evidences are to be accompanied with an application stating the reasons for their admission.
  • On receipt of such an application, the Commissioner of Income-tax (Appeals) may admit the same after recording reasons in writing for the admission of these evidences.
  • Before taking into account the additional evidence filed by the taxpayer, the Commissioner of Income-tax (Appeals) has to provide a reasonable opportunity to the Assessing Officer for examining the additional evidence or the witness, as well as to produce evidences to rebut additional evidences produced by the taxpayer.

Decision of the Commissioner of Income-tax (Appeals)

After hearing the case/arguments, the Commissioner of Income-tax (Appeals) will pass his order. The order will be in writing. The order will be passed for disposal of the appeal and will state the decision on each ground of appeal along with reasons.

In case of an appeal against the assessment order the Commissioner of Income-tax (Appeals) may confirm, reduce, enhance or annul the assessment (including assessment in respect of which proceedings before the Settlement Commission abates).

In case of an appeal against the penalty order the Commissioner of Income-tax (Appeals) may confirm, reduce or enhance the penalty.

Before enhancing any assessment or penalty, the Commissioner of Income-tax (Appeals) has to provide a reasonable opportunity to the taxpayer to present his case against such enhancement.

While disposing of an appeal, the Commissioner of Income-tax (Appeals) may consider and decide any matter arising out of the proceedings in which order appealed against was passed, even if such matter was not raised by the taxpayer before the Commissioner of Income-tax (Appeals).

Disposal of appeal

Where it is possible, the Commissioner of Income-tax (Appeal) shall dispose off the appeal within a period of one year from the end of the financial year in which appeal is filed. The order should be issued within 15 days of last hearing. (Instruction No. 20/2003 [file no. 279/Misc 53/ 2003- ITJ], Dated 23.12.2003).

Faceless Appeal

The Finance Act, 2020 has authorized the Central Government to notify an e-appeal scheme for disposal of appeal so as to impart greater efficiency, transparency and accountability by:

(a) eliminating the interface between the CIT(A) and the appellant in the course of appellate proceedings to the extent feasible technologically;

(b) optimising the utilisation of the resources through economies of scale and functional specialisation;

(c) introducing an appellate system with dynamic jurisdiction in which appeal shall be disposed of by one or more CIT (Appeals).

The Central Board of Direct Taxes (CBDT) vide Notification No. 76/2020, dated 25-09-2020 has notified the Faceless Appeal Scheme, 2020 effective from 25 -09­2020.

[As amended by Finance Act, 2022]

(Source- Income Tax India Website , Republished with amendments)

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21 Comments

  1. M, NARASIMHA RAO says:

    The jurisdictional ITO for TDS is Vijayawada-A.P. The TDS CPC, Ghaziabad, levied Rs.80,000/- tpwards fee u/s.234E and swerved Intimation u/s.234E. Who is jurisdictional CIT(Appeals) for making appeal against the levy. on line.

  2. VERESHAM says:

    Sir, In appeal to CIT A 4 in payment of appeal fee challan Assessment year was wrongly mentioned.Appeal was filed in firm 35 within the limited period.After declaration is submitted in May 2020 to avail vivadse vishwas schem.By very late I observed in 26 as that the assessment year on appeal fee pay challan was wrongly written.Now no communication is received from cit a 4 or from AO. Now whether I can request to resubmit appeal form 35 ( revised) and to pay again Rs.1000 towards appeal fee duly requestiing condonation of delay in filing appeal.Or whether I request to rectify assessment year appeal fee challan.What to do? Please I require suggestion.

  3. KS Rao says:

    I have made an appeal to Commissioner(Appeals) in Dec 2019 and now I want to close it, as the issue is resolved (without their intervention). How to do it Online?

  4. Ayushman Gopala says:

    मै एक पेंनसनर हूँ पर टेक्स लगता नही है लेकिन २०१७-२०१८,२०१८-२०१९का बैंक से Fixed Deposit पर काटे गए टेक्स के लिये ITR File नही कर सका, अब कैसे करेंगे वापसी के लिये File चूकि Late हो चूका है कृपया सलाह दे कि कैसे करे File

  5. Nagendra Lal Das says:

    My son did not field itr-5 for the year 2013-2014&2014-2015.He died on may-2016. In RTI appeal the information officer Benguluru is advicing to meet comissoner for condonation application with reasonable causeupto-31-3-2020 for year2013-2014&31-3-2021 for-2024-2015.advise reasonable cause.

  6. Sharma says:

    Is it mendatory to deposit 20 percent of assessed amount? Some CA/ AO forcing the
    taxpayers on this.whether pensioners are exempted for deposits

  7. Ayushman Gopala says:

    Sir an agent of LIC has filled ITR AY 2018 wrongly shown income from other source head his income after all deduction and unfortunate the department has rejected the filled ITR due to signed copy not found, and he again filled his ITR income from business and profession head and this time he shown his income as per 26AS which not tallied from rejected filled ITR,so that department has assessed the both income with adding and assessed the ITR and as per that exceeded incme demand has been sent to him, now how will i correct that, because one and 1/2 years has been passed how will he take the deducted tax, kindly guide me

  8. Ayushman Gopala says:

    एक ब्यक्ति जो LIC agent है २०१८ मे उन्होने ITR file किया है
    उसने अपनी कूल आय से 80c तथा अन्य कटौती घटा कर तब
    आय दिखाया, पर वह reject हो गया और वह फिर से file किया
    उसमे उसने कूल आय दिखाया, परंतू income tax department
    ने assessment के दौरान दोनो को दो आय समझ कर जोर कर
    assessment किया और demand 105000 भेज दिया,अब क्या करना है

  9. N. Krishnaswamy says:

    How the asst.order copy,156 notice has to be attached to the petition is not clear. The form provided for a list of the documents only andculd not find the attachment provision in the form.

  10. Neha says:

    The article mentioned that “While disposing of an appeal, the Commissioner of Income-tax (Appeals) may consider and decide any matter arising out of the proceedings in which order appealed against was passed, even if such matter was not raised by the taxpayer before the Commissioner of Income-tax (Appeals)”, in simple words appeal before CIT(A), would then be extension of the assessment proceedings, that power of AO and CIT(A) being coterminous then. Kindly clarify.

  11. V.Gopalswamy, FCA,ACMA, ACS. says:

    Very Informative & useful article. Can we E- file an Appeal ,even when not mandatory ? A Registered Apartments Maintenance Society, (not for Profit & Not distributing Dividend),filed a Return as AOP, claiming Tax Exemption applicable for Individuals & applying Individual’s Tax Slab Rates. IT Dept. issued demand Notice, applying Maximum Marginal Rate of Tax and not giving Basic Exemption. Can we appeal online ?

  12. CA O P VIJAY says:

    it is one of the best article in respect of filing of appeal before CIT (appeal).
    In respect of belated appeal ,it has not elobroated provisions of Act .Can belated appeal matter can be discuss.

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