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APPEALS & REVISIONS

By: Divya Singh Himanshi Ahuja Divye Pandit Deepak Gaur

APPEALS AND REVISIONS


Appeal has been defined in Mozley and Whiteleys

law dictionary as a complaint to a superior court for an injustice done by an inferior one.
The party complaining is styled as appellant, the other

party is known as respondent.


The right to appeal must be given by express

enactment in the Act and it cannot be implied.

Who are appellate authorities


Appeal against the order of the assessing officer lies with

the commissioner, or the assessee can file revision petition to the commissioner of income tax. Appeal against the order of the commissioner can be preferred by the assessee or IT department and such appeal lies with the Appellate Tribunal. The assessee or the commissioner of IT may prefer an appeal against the order of the Appellate Tribunal to the high court on any substantial question of law arising out of the tribunal.

The provisions of appeal & revision


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

Second Appeal Appeal high court

Appeal to Supreme Court supreme court

When and against what orders appeal lies to commissioner (Appeals) [sec.246A]
First appeal against the order of the assessing officer

lies with the commissioner. An assessee aggrieved by any of the following orders of Assessing officer may appeal to the Commissioner against such order: Intimation under section 143(1) where the assessee objects to the making of adjustment. Order of assessment under section 115WE(3)/ 115WF where the employer objects to the value of fringe benefit assessed. Order of assessment or reassessment under sec 115WG.

Order of assessment, reassessment or recomputation

under sec 147 or sec 150. Order of assessment or reassessment under sec 153 A. Order under sec 163 treating assessee as an agent of non resident. Order under sec 170(2) or 170(3) relating to succession to business otherwise on death. Order under sec 171 regarding assessment after partition of a HUF. Order made under sec 201. Order made under sec 206C(6A).

Order under sec 237 relating to refund. Order imposing penalty under sec 221,271,271A,271F,271FB,272AA,272BB or 275.

An order made by an assessing Officer (other than a

joint commissioner) under the provisions of the act in the case of such person or classes of person, as the board may, having regard to the nature of the cases, the complexities involved and other relevant considerations direct.

Procedure for filing appeal


Appeal under sec 246A shall be in Form No.35 and

should be verified in the manner prescribed therein. 1.Who has to sign the appeal- Form no.35, the grounds of appeal and the form of verification appended thereto relating to an assessee shall be signed & verified by the person who is authorised to sign the return of income under sec 140 as applicable to the assessee.

The appeal should be accompanied by a fees as follows:


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

2. Documents to be submitted along with appeal; Appeal is required to be made in duplicate. The memorandum of appeal, statement of facts and the grounds of appeal must be in duplicate & should be accompained by a copy of the order appealed against & the notice of demand in original, if any.

Time Limit
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.

Where the assessment order was served on a person who was not an

authorized agent of the assessee and later on the assessee applied for and obtained a copy of the assessment, it was held that time limit for filing the appeal should be reckoned from the date on which the assessee obtained the copy of assessment order and notice of demand and not from the earlier date of the service of the assessment order.

Powers of commissioner(appeals) u/s 251


a) In an appeal against an order of assessment, he may

confirm,reduce,enhance or annul the assessment


b) In an appeal against an order imposing a penalty , he

may confirm or cancel such order or make a variation to reduce or enhance the amount of penalty
c) In any other case ,he can pass such orders as he

thinks fit.

When appeal can be made to high court [sec 260 A & 260 B]
An appeal shall lie to the High Court from every order

passed in appeal by the Appellate Tribunal ,if the High Court is satisfied that the case involves a substantial question of law. An appeal can be filled by the assessee or commissioner
The appeal shall be filled within 120 days of the date

on which order is communicated to the assessee or commissioner

When appeal lies to Supreme court


The right to appeal to the supreme court can be availed only if the

high court gives the certificate of fitness.


If the high court refuses to certify a case to be fit for appeal to the

supreme court the aggrieved party may make an application to the supreme court under article 136 of the constitution for special leave to appeal against decision of high court.
The supreme court should deliver its judgment thereon containing

the grounds on which such decision is founded. Where the judgment of high court is varied or reversed by the supreme court the Appellate tribunal should pass such orders as are necessary to dispose of the case conformably to such judgment.

Provisions for avoiding Repetitive Appeals (SEC 158 A)


1.

The case of the assessee in respect of a question of law pertaining to an earlier assessment year is pending in an appeal before the high court or supreme court
An identical question of law arises in later assessment year before assessing officer or the appellate authority The assessee may give a declaration in Form no. 8 to the Assessing officer/appellate authority that: a) if the assessing officer or the appellate authority agrees to apply in the later case the final decision of high court or supreme court on question of law in the earlier case. b) the assessee shall not raise such question of law in the later case in appeal before any appellate authority/high court/supreme court.

2.

3.

4 . If the aforesaid declaration is given to any appellate authority, a report shall be called from the assessing officer by the appellate authority on the correctness of the claim made by the assesses. An opportunity of being heard may be given by the appellate authority to the assessing officer.

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