A Assignment On Appeals & Revision in Income Tax

Submitted to:Mr. Prashant Sipani Submitted by:Tarun Bhatia(S01148) PGDM(2011-13)

APPEALS PROCEEDINGS AND REVISION UNDER INCOME TAX ACT, 1961

The term appeal has no where been defined under the Income Tax Act. However as per Mozley and Whiteleys Law Dictionary Appeal is a complaint to a superior court of an injustice done by an inferior one. The party complaining is styled as the Appellant and the other party is known as Respondent. Under the scheme of the Income Tax Act, an assessment is normally the first Stage determining the Taxable Income and The Tax, Interest or Sum Payable by an assessee. The Act provides for various remedies available to an assessee on completion of the assessment. The primary remedies available to an assessee on completion of the assessment are: : APPEALS : REVISION : RECTIFICATION

APPELLATE HIERARCHY
NATURE OF TO WHOM IT ACTION SHOULD BE FIELD First Appeal Commissioner(app eals) [CIT (A)] Second The Income Tax Appeal Appellate Tribunal Appeal to high court Appeal to supreme court High Court Against whose order it Who can prefer can be preferred Against the order of Assessing officer Against the order of the CIT(A) Substantial question of law arising out of ITAT order Judgment of High Court Taxpayer Taxpayer or commissioner of Income Tax Taxpayer or commissioner of Income Tax Taxpayer or commissioner of Income Tax

Supreme Court

The proceedings of appeal work strictly as per the statutory provisions made in this regard. Therefore, it is essential to understand these provisions in greater detail and know exactly what are the powers, rights and duties of the CIT (A) as well as the assessee while dealing with the appeals.

SECTION -249-FORM OF APPEAL AND LIMITATIONS

Section 249(1) An appeal to the CIT (A) shall be in Form No. 35. Appeal shall be

accompanied by appeal fees prescribed as under:

APPEAL FEES FOR CIT (A) SITUTION If Total income as per assessment order is 1,00,000/- or less If Total income as per assessment order is more than 1,00,000 but Less than 2,00,000/If Total income as per assessment order is more than 2,00,000/If the subject matter of appeal is not covered by above AMOUNT(Rs.) 250.00 500.00 1000.00 250.00

The above appeal fees are based on assessed income exclusive of agriculture income. Documents to be filed with the Appeal form Form No. 35 along with statement of facts and grounds of appeal in duplicate. Receipted challans for the payment of Appeal Fees in original. Copy of the order appealed against (In case of appeal against the penalty order, also enclose a copy of the relevant assessment order). Original Notice of Demand

Section 249(2)-Time Limit for filing appeal As per section 249(2), an appeal shall be preferred within 30 days of the date of service of notice of demand in the case of an appeal against an assessment or penalty or of the intimation or any order sought to be appealed against. In the case of an appeal u/s. 248, the same shall be preferred within 30days of the payment of tax. Section 249 (3)- Condonation of delay in filing appeal Section 249(3) enables the CIT (A) to admit an appeal after the examination of the time limit of 30 days if he is satisfied that the appellant had sufficient cause for not presenting it within the time limit prescribed. In case of an appeal filed beyond the period of 30 days, it is recommended that the same shall be accompanied by a petition for condonation of delay explaining the reasons for the delay.

In appropriate cases, it is also advisable to file an affidavit confirming the reasons for the delay. As far as possible an attempt shall be to explain the reasons for each and every days delay in filing the appeal.

Section-249 (4)-payment of tax on Returned Income before the appeal Section 249 (4) provides that no appeal shall be admitted unless the appellant has paid the tax due on the returned income before filing of the appeal. This is a very important part of appeal proceedings and one has to be extra careful on this front. If the tax on the returned income is not paid before the filing of the appeal, the appeal is not likely to be admitted. Section 249(4) is mandatory and there is no remedy available against the operation of the said section. If the Tax is not paid before the filing of the appeal, then legally the CIT (A) is empowered to dismiss the appeal. However, if the tax is paid before the final date of hearing of the appeal, then normally the CIT (A) allows the appeal to be heard and decides the same on merit.

Section-250-Procedure of Appeal Section 250 of the act deals with the procedures in an appeal proceeding. As per the section, the CIT (A) shall give a notice in writing fixing a date of hearing to both the appellant and also the assessing officer. The assessee or his authorized representative is having a right to be heard at the time of the hearing of the appeal. Similarly right is made available to the assessing officer or his authorized representative to be heard however, normally in practice, only the appellant appears in the hearing. No right is available to the assessing officer to be heard in the appeals under the wealth tax Act.

Appeal Order Sub-section(6) of section 250 provides that the order of the CIT (A) has to be in writing and the same has to be a speaking order giving reasons for the decision on all the issues raised in the appeal. For any of the issues resulted from the appellate order an application for rectification u/s. 154 can be made to CIT(A).

Time Limit for disposal of the appeal As per sub-section (6A), it is recommended that the appeal filed may be heard and decided within one year from the end of the financial year in which the appeal is filed. However, this is an advisory limit and not strictly mandatory. Further the appellate order shall be issued within 15 days of last hearing.

Section-251-powers of the CIT (A) Section 251 of the acts deal with the powers of the CIT (A) while disposing off an appeal before him. The powers of the CIT (A) are co-terminus with that of the assessing officer and accordingly he can do everything which an assessing officer can do while making an assessment. Similarly he can not do something which an assessing officer can not do. As per section 25(1), while deciding an appeal against an order of assessment, the CIT (A) may eitherconfirm reduce enhance or annual the assessment

Similarly while deciding an appeal against the levy of penalty, the CIT (A) may eitherconfirm such order or cancel such order Vary it so as to either enhance or reduce the penalty.

APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL

The Income-Tax Appellate Tribunal (ITAT) is the second appellate authority to whom appeals can be filed against the order of the CIT (A). It is the final fact finding authority in the entire proceedings. The facts recorded in the order of the ITAT can not be challenged before the High Court or Supreme Court where only a substantial question of law can be contested by an assessee. The ITAT is a very important forum in the appellate proceedings because it is the first independent body. The ITAT is a Qusai-Judicial authority governed by the Ministry of law and not the Ministry of Finance. Due to this independence of the ITAT, normally the decisions of the ITAT are non-biased. There are different branches of ITAT like (a) Division Bench (b) SMC Bench (c) Third Member Bench and (d) Special Bench

Who can file an appeal before ITAT An appeal to ITAT can be filed against the order of the CIT (A) by either of the aggrieved party i.e. the assessee or the assessing officer under the directions of the commissioner.

Time Limit for filing an appeal The appeal shall be filed before ITAT within 60days of the date of communication of the order appealed against.

Condonation of Delay in Filing Sub-section (5) of section 253 grants a power to the appellate tribunal to admit an appeal or permit the filing of a cross objection after the expiry of the time prescribed if it is satisfied that there was a sufficient cause for not presenting it within the prescribed time. In a case where the appeal is filed after the expiry of the time limit, it is desirable that an application for condonation of the delay is filed along with the appeal itself. Further an affidavit explaining the reason for the delay shall also be filed along with the appeal papers.

Appeal fees payable in the case of an appeal to ITAT by the assessee Situation If the total income as per assessment order is 1,00,000/- or less If the total income as per assessment order is more than 1,00,000/- but less than 2,00,000/If the total income as per assessment order is more than 2,00,000/If the subject matter of appeal is not covered by above Amount (RS.) 500.00 1500.00 1% of the assessed income subject to maximum Rs. 10,000/500.00

Note: The Appeal fee is payable on the basis of assessed income ignoring the relief allowed by CIT (A).

Monetary Limit For Appeals To ITAT By The Department With a view to avoid litigation in smaller cases, the Central Board of Direct Taxes issues instructions from time to the authorities not to file the appeal to the Income Tax Appellate Tribunal, in Cases where the tax amount involved is less than the Rs. 3 Lakh. The above limit of Rs. 3 Lakhs shall apply to each appeal separately and not jointly.

DRESS CODE FOR REPRESENTATIVES The dress code for the authorized representative has been laid down by rule 17A of the Income-Tax Appellate Tribunal Rules, 1963. As per this rule the dress code for the authorized representative (other than a relative or a regular employee) is as under: For Male: A suit with a tie or buttoned up coat over a pant or national dress i.e. a long buttoned up coat on dhoti or churidar pyajams. The colour of the coat shall, preferably. be black. For Female: Black coat over white or any other sober coloured saree.

APPEAL TO THE HIGH COURT (SECTION 260A)

Section 260A provides for direct appeal to the High Court against the order of Appellate Tribunal. Section 260A(1) provides that an appeal shell lie to High Court from every order passed in appeal by the Appellate Tribunal up to date of establishment of NTT, if High Court is satisfied that the case involve a substantial question of law. If the High Court is satisfied, so it shall formulate that question. After the establishment of the NTT, the appeal shall lie to the NTT. The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may be file an appeal to the High Court under this section. The appeal shall be in the form of the memorandum of appeal, precisely stating in the substantial question of law involved.

Time Limit for Filling the Appeal The appeal shall be filed within 120 days from the date on which the order appealed against is received by the assessee, or the Chief Commissioner or Commissioner. The High Court has and always had the power to condone the delay and admit an appeal after the expiry of the period of 120 days, if it is satisfied that there was sufficient cause for not filling the appeal within that period.

Matters on which Appeal can be heard The appeal shall be heard only on the question formulated. However, the respondent shall at the hearing of the appeal, be allowed to argue that the case does not involve such question. Further, the Court shall be also have power to hear the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involve such question. However such power shall be exercised by the Court only after recording the reason for hearing such question. Further, the High Court may determine any issue which (A) Has not been determined by the Appellate Tribunal; or (B) Has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in section 260 A(1).

APPEAL TO THE SUPREME COURT (SECTION 261)

According to the Section 261, an Appeal shall lie to the Supreme Court from any judgment of the High Court delivered before the establishment of the NTT, in a case which the High Court certifies to be a fit one for Appeal to the Supreme Court. Thereafter, an appeal shall lie to the Supreme Court from any judgment of the NTT as per the provision of National Tax Tribunal Act, 2005: The provision of the Code of Civil Producer, 1908 in regard to appeal shall reply in the case of all appeals to the Supreme Court in the same manner as in the case of all appeals from decrease of a

High Court. The cost of appeal shall be decided at the discretion of the Supreme Court. Where the judgment of a High Court is varied in the appeal, effect should be given to the order of the Supreme Court in the same manner as provided in the case of a judgment of the High Court.

REVISION BY THE COMMISSIONER (SECTION 263 & 264)

Revision of Orders prejudicial to the Revenue (Section 263) 1. The Commissioner may call for and examine the record of any proceeding under the Act. If he considers that any order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as may be necessary, pass a suitable order. 2. He can enhance, modify or cancel an assessment. He can also direct that a fresh assessment should be made. 3. The term record shall include and shall be deem ed always to have include all records relating to any proceedings under the Act available at the time of examination by the Commissioner. 4. Where any order referred to in section 263(1) passed by the Assessing Officer had been the subject-matter of any appeal, the power of the Commissioner under section 263(1) shall extend and shall be deemed always to have extend to such matters as had not been considered and decided in such appeal. 5. No order shall be made after the expiry of 2 years from the end of the financial year in which the order sought to be revised was passed. 6. In computing the period of 2 years, the time taken in giving an opportunity to the assessee to be reheard under section 129 and any period during which the revision proceeding is stayed by an order or injunction of any court shall be excluded. 7. The time limit, however does not apply in case where the Commissioner has to give effect to a finding or direction contained in the order of the Appellate Tribunal, High Court or the Supreme Court.

REVISION OF OTHER ORDER (SECTION 264)

In the case of any other order (not being an order prejudicial to the Revenue) passed by any subordinate authority including the Deputy Commissioner may either on his own motion or no receipt of an application from the assessee, call for the record of any proceeding under the act in the course of which the order passed. After making such enquiries as may be necessary the Commissioner may pass such order as he thinks fit. The Commissioner is not empowered to revise any order on his own motion if a period of more than one year has expired from the date of the order sought to be revised. If the application for revision is made by the assessee, it must be made within one year from the date on which the order in question was

communicated to him or the date on which he otherwise comes to know of it, whichever is later. However, the Commissioner may admit an application even after the expiry of one year, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period. The application to the Commissioner for revision must be accompanied by a fee of Rs.500. if an order is passed by the Commissioner declining to interfere in any proceeding, it shall not be deemed to be an order prejudicial to the assessee. However, the commissioner is not empowered to revise any order in the following cases. 1. Where an appeal against the order lies to the Commissioner (Appeal) or the Tribunal but has not been made and the time within which the appeal may be made has not expired or in the case of an appeal to the Tribunal the assessee has not waived his right of appeal. 2. Where the order is pending on an appeal before the Deputy Commissioner (Appeal). 3. Where the order has been made subject to an appeal to the Commissioner (Appeal) or the Appellate Tribunal.

Bibliography
1. http://220.227.161.86/18900sm_dtl_finalnew_cp24.pdf 2. http://www.google.co.in/url?sa=t&rct=j&q=appeals+and+revision+of+income+t ax+in+india&source=web&cd=3&cad=rja&ved=0CDcQFjAC&url=http%3A%2F %2Fwww.dehradunicai.org%2FUserFiles%2FFile%2FAPPEAL_BRFORE_CIT_A_.doc&ei=UQoi UZ6sAY_rrQfD4YHICg&usg=AFQjCNFua3HpWFyxKBYPC_ErZ8boyZezcw& bvm=bv.42553238,d.bmk