Appeal under Income Tax Act -I

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Srikant 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.