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Appeal under Income Tax Act -I

Srikant 
posted on 15 October 2009

 

Appeal under Income Tax Act,1961                                                                                    
Sections Covered
1) 246A: CIT (Appeals)
2) 254: ITAT ---Final Fact Finding Authority
3) 260A: Supreme Court ---On substantial Question of Law
4) 261: Supreme Court                                                                                                       
ORDERS NOT APPEALABLE
1) Orders passed U/s 234A, B, and C for levying Interest
2) Orders passed U/s 264 rejecting Revision Petition
3) Orders of AAR (Authority for Advance Ruling)
4) Orders of Settlement Commission
Documents required for filling Appeal
In Original
1)      Copy of Order appealed against
2)      Notice of Demand
In Duplicate
1)   Appropriate Form
2)  Memorandum of Appeal
3)   Statement of Facts and Grounds of Appeal
 
PROCEDURE FOR APPEAL AT A GLANCE

Particulars
246A
254
260A
261
 
 
 
 
 
Appellate Authority
CIT (A)
ITAT
Supreme Court
Supreme Court
Time limit for Appeal
30 days from the receipt of the order
60 days from the communication of the Order
120 days from the communication of the order of ITAT
90 days from the date of Order of Supreme Court
Time limit for disposal of Appeal
1 Year from the end of the FY
4 Year from the end of the FY
As per Court procedure
As per Court procedure
Application Form
35
36
As per Court procedure
As per Court procedure
Stamps to be affixed
0.50P
0.50P
As per Court procedure
As per Court procedure
Fees to be Paid
 
 
 
 
Returned Income upto Rs1 Lac
Rs 250
Rs 500
As per Court procedure
As per Court procedure
More than 1 lac upto Rs 2 Lac
Rs 500
Rs 1500
As per Court procedure
As per Court procedure
More than 2 lac
Rs 1000
1 % of income    (Max Rs 10,000)
As per Court procedure
As per Court procedure
Appeal for other than Income
Rs 250
Rs 500
As per Court procedure
As per Court procedure
Stay of Demand
Not Possible
Possible against order of CIT(A)
Possible
Possible
Recovery of Tax
No power to stay the recovery of Tax
Final order should be passed within 180 days from the stay order so passed
-
-
Minimum Tax to be paid for filling appeal
If Return is Filled: Tax due on Returned Income
If Return not Filled: At least the Advance tax payable
Rs 2,00,000/-
+ Question of Law
Rs 4,00,000/-
+ Question of Law
Rs 10,00,000/-
+ Question of Law

 
SECTION 246A: APPEAL TO COMMISSIONER (APPEALS)
a)      Appealable orders
1)      Orders against the Assessee
Where the assessee denies his liability
A)      to be assessed under IT Act
B)      to be assessed under Assessment Order U/s 143 (3), 144
Where the assessee objects
A)      to the income assessed
B)      to the amount of Tax determined
C)     to the amount of loss computed
D)     to the status under which he is assessed
2)      Order of Assessment / Re-assessment U/s 147,153A
3)      Orders made U/s 154,155 ---enhancing the assessment
                                    ----Reducing a refund
                                     ---Refusing to allow a claim
4)      Orders made U/s 163 ---treating Assessee as an agent of NR
5)      Orders made U/s 170 (2) / (3)----on succession of Business or Profession
6)      Orders made U/s 171-----refusing Partition of HUF
7)      Orders made U/s 201----levying interest for delay in remitting TDS / TCS
8)      Orders made U/s 206C (6A)---levying penalty for failure to collect or delay in remitting TDS /TCS
9)      Order made U/s 237----Refund
10) Order imposing penalty U/s 221, 271, 271A, 271AAA, 271F, 271FB, 271B, 271BB, 271C, 271CA, 271D, 271E, 272A, 272AA, 272BB, 158BFA, Chapter XXI
11) Order imposing / enhancing penalty U/s 275 (1A)
12) Order made U/s 158BC ( c) for search initiated U/s 132 or requisition of books U/s 132A
13) Orders made U/s 115VP
14) Orders made U/s 115WE/ WF for value of Fringe Benefits
15) Orders made U/s 115 WG for re-assessment of FBT
b)      Powers of CIT (A)
1)      To Condon the Delay as regards limitation of time limit for filling Appeal beyond 30 days---------if he is satisfied that the appellant or the Assessee has sufficient reason to file the appeal after the due date.
2)      To inquire into the matters as he thinks fit, before disposing the Appeal.
3)      To direct the Assessing officer to make such inquiry and report the same, as he thinks fit.
4)      Can confirm, reduce, enhance or annul the assessment -----if the Appeal is against the Order of Assessment.
5)       Can confirm, cancel, and vary the Order -----if the Order is against the Order of Penalty. (can not set aside)
6)      Pass such Order as he thinks fit.
SECTION 253: APPEAL TO INCOME TAX APPELLATE TRIBUNAL)
a)      Appealable orders
7)      Orders Passed by COMMISSIONER (APPEALS)
A)      Orders passed U/s 115 VZC refusing applicability of tonnage tax Scheme.
B)      Orders passed U/s 154
C)     Orders passed u/s 250
D)     Orders passed u/s 271, 271A, 272A
8)      Orders passed by COMMISSIONER
A)      Orders passed U/s 12 AA refusing registration of a Trust as religious or charitable or Cancellation of registration of a Trust.
B)      Orders passed U/s 80G (5) (vi) refusing to register a Trust U/s 80G
C)     Orders passed U/s 263, 271, 272 A
D)     Order passed U/s 154 amending order U/s 263
E)      Order passed U/s 154 amending order passed U/s 272A originally passed by Chief Commissioner, DG or Director
b)      Powers of CIT (A)
1)      To Condon the Delay as regards limitation of time limit for filling Appeal beyond 120 days---------if he is satisfied that the appellant or the Assessee has sufficient reason to file the appeal after the due date
2)      To accept additional evidence Under Rule 46A.
3)      To make necessary inquiry, wherever necessary
4)      To rectify the mistake apparent from record.
5)      Rectify ( can not REVIEW ) its own order at any time ---within 4 years from the date of the Order---with a view to rectify any mistake apparent from record. (if any order is prejudicial to the interest of the Assessee then shall give opportunity of being heard).
6)      ITAT is the final fact finding authority i.e, on a question of fact, the Order of ITAT are final and no appeal against the said order can be filed at Supreme Court. (Note: On a question of Law ---Order of ITAT is final---until appeal is not filed at Supreme Court against the said Order.
OTHER RELEVANT TOPICS RELATED TO APPEALS
APPEAL AGAINST ITAT:
On a question of Fact
A WRIT PETITION can be filed to the Supreme Court, challenging the fact finding process adopted by ITAT. If the Supreme Court is satisfied that the Fact Finding process is not proper, then the Order of ITAT shall be quashed and a direction shall be issued by the Supreme Court to the ITAT to do the Fact Finding in a proper manner and /or as per the direction.
If the above WRIT PETITION filed by assessee is dismissed by SUPREME COURT
The assessee can file a SPECIAL LEAVE PETITION to the SUPREME COURT challenging the Fact Finding process of ITAT. . If the Supreme Court is satisfied that the Fact Finding process is not proper, then the Order of ITAT shall be quashed and a direction shall be issued by the Supreme Court to the ITAT to do the Fact Finding in a proper manner and /or as per the direction.
Published in Income Tax
Source : INCOME TAX ACT,1961
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