35

1. Form No. 35 in duplicate.

2. Order appealed against in duplicate duly certified.

3. Grounds of Appeal and Statement of Facts in duplicate

4. Notice of Demand (original)

5. In the case of appeal against penalty order copies of relevant Penalty order in duplicate.

6. Proof of payment of appeal filing fee.

7. Affidavit stating reasons for delay in filing appeal beyond 30 days for late filing.

1) Person authorised to sign return of Income u/s. 140, must sign appeal form.

2) Appealable orders are Assessment Orders, Reassessment Orders, Penalty Orders and other orders as listed under the relevant section. Appeal does not lie against the order which is not covered by 246A.

3) Appeal do not lie u/s 246A, if the additions/disallowances on facts are admitted by the Assessee before the AO. (unless the appellant can demonstrate that facts relied upon were untrue and circumstances for placing such reliance), as the assessee cannot be said to be ‘aggrieved’ by the asst. order containing such agreed additions/disallowances. However, the wrong admission/acquaintance by Assessee on statutory provisions, law points are not binding.

4) The Assessee must ensure payment of tax due as per income ‘returned’ by him u/s 249(4) if not paid at the time of filing of return of income.

1) Where under an agreement or other arrangement, the tax is deductible on any income [other than interest] under S.195 is to be borne by the person by whom the income is payable and such person having paid such tax claims that no tax was required to be deducted on such income, he may appeal to the CIT(A) for a declaration that no tax was deductible on such income.

2) Where the tax is borne by the payee, the payer cannot file appeal under S. 248 of the Act. If the payee contends for lower rate of deduction or nil deduction, he has to file the return of income and claim refund from the revenue authorities. Alternatively, he may invoke Writ jurisdiction of the Competent High Court under Article 226 of the Constitution owing to absence of effecious alternative remedy.

3) Tax has to be paid before filing appeal u/s 248

4) CIT(A) in appeal u/s 248 holding assessee not liable to deduct tax at source u/s 195, assessee is entitled to refund of the amount deposited by way of TDS. [TELCO vs. DCIT (2004) 83 TTJ 458 (Mum.)]

(i) 60 days from the
date of service of
CIT(A) order
Sec.253(3)

Appeal fees:

a) Rs. 500.

1) where assessed total income is Rs.1 lakh or less.

2) Where appeals are filed on issues such as TDS defaults, penalties, non-filing of returns, etc. which cannot be linked with the assessed income.

3) An application for stay of demand.

b) Rs.1,500, if assessed income is above Rs. 1 lakh but not more than Rs. 2 lakhs.

36

1. Form No. 36 together with Grounds of appeal in triplicate.

2. Order appealed against in duplicate (including one certified copy)

3. Order of AO in duplicate.

4. Grounds of Appeal before CIT(A) in duplicate.

5. Statement of facts filed before CIT(A) in duplicate.

6. In the case of appeal against penalty order in duplicate of Assessment order.

7. In the case of appeal against order u/s. 143(3) read with S.144A-Two copies of the directions of the Joint Commissioner
u/s. 144A

8. In the case of appeal against order u/s. 143 read with S. 147 — Two copies of original ass-essment order, if any.

9. Proof of payment of appeal filing fee.

1. Person authorised to sign return of income u/s. 140, must sign appeal form.

2. Orders of CIT(A)/CIT against which appeal lies are listed under the relevant section.

3. If the assessed income is a loss then Filing fees of Rs. 500/- only has to be paid in view of Bombay High Court decision [Gibbs Computer vs. ITAT 317 ITR 159 (Bom.) (2009)].

4. The fee payable for filing appeal before the ITAT in cases of penalty orders would be only Rs. 500/- as they do not have any nexus with assessed income.

[Dr. Ajit Kumar Pandey vs. ITAT (2009) 310 ITR 195 (Pat.)]

i. The Assessee/A.O. (who may or may not have filled appeal) may file the cross objections against any part of CIT(A) order. No fees payable.

1. CIT must disclose reasons/grounds in his notice to assessee for proposed revision. He shall give reasonable opportunity of being heard to Assessee before an order u/s 263 passed.

2. CIT has the power to call for and examine the record of any proceeding under the Act.

3. The Assessment Order must be ‘erroneous’ as well as ‘prejudicial to the interest of revenue’ before the action can be taken under this section.

4. The CIT has jurisdiction and power to initiate proceedings under S. 263 in respect of all issues not touched by the CIT(A) in the appellate order.

5. The expression ‘erroneous’ and ‘prejudicial to the interest of revenue’ granting jurisdiction to CIT have been subject matter of raging controversies.

Any order passed by the officer subordinate to CIT Exception:

1. Applies to an order other than an order to which S. 263 applies.

a) If CIT revises on his own motion — 1 year

1. The provision can be beneficially used by the Assessee for seeking appropriate relief from CIT where certain claims, relief could not be claimed before the AO or appeal could not be filed before CIT(A) in time for any reason.

2. Application by the Assessee to be accompanied by a fee of Rs.500.

3. An order cannot be said to have been made subject to an (effective) appeal if the appeal has been disposed of by CIT(A) or ITAT without passing an order on merits.

4. S. 264 is enacted for the benefit of the Assessee. Order u/s 264 can not be prejudicial to Assessee.