Appeal to commissioner of income tax (Appeals)

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). Section 246A specifies the orders against which an appeal can be filed before the Commissioner of Income-tax (Appeals).

The Income-tax Rules, 1962 (the Rules) only provides that an appeal to the Commissioner (Appeals) shall be made in Form No. 35 and that the form of verification shall be signed and verified by the person who is authorized to sign the return of income under section 140 of the Income-tax Act, 1961 (the Act) (Rule 45) . Rule 8 mandates that every memorandum of appeal shall be written in English and shall set forth, concisely and under distinct heads the grounds of appeal without any argument or narrative and such grounds shall be numbered consecutively. Form No. 35 requires to set out a statement of facts along with the ground of 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) Where appeal is under section 248, i.e., appeal by a person denying liability to deduct tax under section 195, the date of payment of tax.

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

Belated application:

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

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.

Assessee may use the following path for filing form 35:

http://www.incometaxindiaefiling.gov.in/  << Login the website (Existing user)  OR  Register with Income Tax ( New User) << e-file << Prepare and submit Online Form ( Other Than ITR) << Select Form No. 35- Appeal to Commissioner ( Appeals) and relevant assessment year and fill out the relevant details. 

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.

SCHEDULE OF FEES FOR FILING APPEALS TO THE COMMISSIONER OF INCOME-TAX (APPEALS)

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

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). [As amended by Finance Act, 2016]

Death of an assessee:

Where an assessee to an appeal dies or is adjudicated insolvent or in the case of the company wound up, the appeal will not abate and will continue against the executor, administrator or other legal representatives of the assessee or by or against the assignee, receiver or liquidator as the case may be. In case of a death of assessee, the legal heirs of the assessee must file copy of death certificate and an affidavit of they being the legal heirs. A fresh memorandum of appeal signed by the legal heirs must be filed before the Commissioner (Appeals) where the assessee is the appellant so that the legal heirs are brought on record.

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