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1. ‘Right To Appeal’ Is A Statutory Right Under Income Tax Act.

 
Meaning. Appeal refers to an act of referring the case/matter/situation to a higher authority against the order passed by a lower authority in respect of that case or matter. It implies a complaint to a higher authority against the order or judgement (alleged to be erroneous) of an administrative authority or appellate authority. The complex nature of Income Tax Act and the various rules often, create a situation where there is difference of opinion among the assessee and the assessing officer (i.e., Income tax department). Quite often, an assessee is not satisfied by an assessment order/any other order issued by any income tax authority and such an aggrieved assessee can present his case before specified authorities prescribed under Income Tax Act. Such prescribed authorities constitute ‘appellate machinery’ or ‘appellate authorities’.
 

1.      ‘Right To Appeal’ Is A Statutory Right Under Income Tax Act.


The right to appeal is not the natural or inherent right of the assessee. It is available to him only if specifically granted under Income Tax Act. Thus, it is a statutory, right of the assessee and cannot be denied to him by ny orde f Central Board of Direct Tax (CBDT). It can be snatched from the assessee only by a express provision provided under Income Tax Act.

1A.      Parties to an Appeal

There are following two parties to\any appeal :

  1. Appellant. The person filing an appeal is c,1ied ‘appellant’ or ‘applicant’. Under Income Tax, the first appeal can only be filed by assesseeand—hence only assessee can be appellant in such a case. However, in subsequent appeals (i.e., appeal to ITAT, HC or SC) appellant can be assessee or C.I.T.
  2.  Defendant / Respondent. The person against whom the appeal is filed is called ‘defendant’ or ‘respondent’.

1B.      Various Appellate Authorities under Income Tax Act

AI.             Commissioner (Appeals).

All.            Income Tax Appellate Tribunal (ITAT).

AIII.           High Court / NTT.

AIV.     Supreme Court.

Appeal to the Commissioner (Appeals) [Sectiàn 246 (2)]

Any assesse,e aggrieved by any of the following orders (which are made before or after the appointed day) may appeal to the Commissioner (Appeals) against such order

1C.         Appealable Order Before Commissioner (Appeals) [Section 246A]

1. Against an

(a) An order passed by a Joint Commissioner u/s 1 15VP (3)(ii) or an order making the assessee liable to tax but where he denies his liability,

(b) An intimation u/s 143(1) or 143(1B) objecting to the adjustments made,

(c) An order of assessment made u/s 143(3) or section 144 as regards income assessed or to an amount of loss computed or to the status under which he is assessed.

(d) An order of assessment made under section 1 15WE(3) or u/s 1 15WF, where the assessee being an employer objects to the value of fringe benefits assessed.

(e) An order of assessment or reassessment made uls 1 15WG.

2.   An order of assessment, reassessment, or re-computation of income u/s 147 or u/s 150 ; or u/s 153A

3.   An order u/s 154 or 155 by which his tax liability is enhanced or refund is reduced or to allow the claim made by him under either of these sections

4.   An order issued under section 163 regarding treating a person as agent

5.   An order made u/s 170(2) or (3) regarding assessment on succession

6.   An order made u/s 171 regarding partition of H.U.F.

7.   An order issued under section 185(1)(B), or 185(2) or 185(3) or 185(5) in respect of assessment of registered firms as they before 1-4-1992

8.   An order issued under section 186(1), or 186(2) in respect of assessment of firms as they existed before 1-4-1992


9.   An order made u/s 201


10. An order made u/s 206C (6A)


11. An order made u/s 237 regarding refund


12. An order of penalty made

 

(a) u/s 221, regarding payment.Of tax in default,


(b) u/s 271, regarding non-filing of return,


u/s 271A, regarding failure to keep or maintain accounts, documents etc., u/s 271AAA


u/s 271 F, regarding failure to file return of income,


u/s 271 FB for failure to furnish return f fringe benefits,


u/s 272AA regarding failure to comply) with the provisions of section 133B,

 

u/s 272BB regarding failure to comply Avith the provisions of section 203A regarding tax deduction account number.


13. An order of imposing or enhancing penal u/s 275(1A)


14. An order of assessment nade by Assesg Officer under section 158BC©, in respect of search commenced u/s 32 in resyet of requisitioning of books of accounts, other documents or any asset u/432A-in or after 1-1-1997;


15. An order imposing a penalty u/s 158BFA(2) regarding levy of interest on assessment under search and seizure


16. An order imposing a penalty u/s 271B and 271BB regarding failure to get the accounts audited or failure to subscribe in eligible issue;


17. An order made by a Deputy Commissioner (Joint Commissioner with effect from 1-10-98) imposing a penalty u/s 271C, section 271CA for not deducting tax at source, or u/s 271D o?271E for accepting or giving deposit or loan exceeding Rs. 20,000 in cash


18. An order made by a Deputy Commissioner or Deputy Director (Joint Commissioner or Joint Director from 1-10-98) imposing a penalty u/s 272A regarding failure to sign, answer questions etc.


19. An order imposing any penalty under chapter XXI


20. An order made by an Assessing Officer except by Deputy Commissioner, (Joint Commissioner with effect from 1-10-98) under the provisions of this Act in the case of such persons or class of persons as directed by CBDT.


1D.      Appeal By Person Denying Liability To Deduct Tax In Certain Cases
[Section 248]


Where under an agreement or other arrangement, tax deductible on any income other than interest u/s 195, is to be borne by the person by whom the income is payable and such person having paid such tax to the credit of the Central Government; claims that no tax was required to be deducted on such income, he may appeal to the Commissioner (appeals) for a declaration that no tax was deductible on such income.


1E.     Form Of Appeal, Fee And Time Limit [Section 249]


1. Appeal must be made in prescribed Form No. 35 and verified in prescribed manner.


2. The appeal must be accompanied by a receipt of payment of fee at following rates


(a)       Where the total income of the assessee as computed by the Assessing Officer is up to Rs. 1,00,000 Rs. 250.


(b)      
Where the Total income of the assessee as computed by the Assessing Officer is between Rs. 1,00,000 and Rs. 2,00,000 Rs. 500.

 

(c)     Where the total income exceeds Rs. 2,00,000 Rs. 1,000.


(d)       If any matter is not covered under (a), (b) or (c) above, the fee shall be Rs. 250.


3.         The appeal shall be presented in the prescribed form and verified in the prescribed manner, within 30 days of the following dates, i.e.


(a)      
date of the service of the relevant notice of demand—provided that where an application has been made under Section 146 for re-opening of an assessment, the period from the date on which the application is made to the date on which the order on the application is served on the assessee shall be included, or


(b)       date on which tax is deducted u/s 195 (1) relating to deduction of tax from payments to non-residents, or


(c) in any other case, the date on which intimation of the order against which appeal is preferred.


The Commissioner (Appeals) may admit an appeal after the expiry of the said 30 days if they are satisfied that the appellant had sufficient cause for not presenting it within period.


1F.      Pre-requisites for appeal


No appeal shall be admitted unless at the time of filing of the appeal


(a)       where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him ; or


(b)       where the return has not been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him. Provided that, on an application made by the appellant in this behalf, the Deputy Commissioner (Appeals) may, for reason to be recorded in writing, exempt him from the operation of these provisions.


1G.      Procedure in appeal [Section 250]


1. Under Section 250 (1), the D.C. (A) and Commissioner (Appeals) shall fix a day and place for the hearing of the appeal and shall give notice of the same to the appellant and to the I.T.O. against whose order the appeal is preferred.


2. The following shall have the right to be heard at the hearing of the appeal


(a)       the appellant either in person or by an uthorized representative


(b)       Assessing Officer, either in person or by a representative [Section 250 (2)1.


3. The Commissioner (Appeals) shall have the power to adjourn the hearing of the appeal from time to time. [Section 250 (3)].


4. The Commissioner (Appeals), may before disposing off any appeal, make such further inquiries as they think fit or may direct the Assessing Officer to make further enquiry and report the result of the same. [Section 250 (4)].


5. The Commissioner (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal, not specified in the grounds of appeal, the Commissioner (Appeals) is satisfied that omission of that ground from the form of appeal was not uthori or unreasonable. [Section 251 (5)].


6. The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, decision thereon and the reason for the decision. [Sec. 250 (6)].


7. Limitation of period to decide the appeal by Commissioner (Appeals) [Section 250(6)]. With effect from 1-6-1999, the Commissioner (Appeals) may decide upon the appeal (where it is possible) within a period of One year from the end of financial year in which appeal is made.

 

8. On the disposal of the appeal, the orders passed by them shall be passed on the assessee as well as to the Commissioner. [Section 250 (7)].
 
 
 
More Topics ....@ Appeals !
‘Right To Appeal’ Is A Statutory Right Under Income Tax Act.
Powers of Commissioner (Appeals) [Section 251)
Appeal to Appellate Tribunal
Constitution of Tribunal (Section 252)
Appealable Orders [Section 253]
Form, Fee And Time Limit Of Appeal [Section 253 (6)]
Orders Of The Appellate Tribunal [Section 254]
Procedure in Appeal [Section 255]
Appeal to National Tax Tribunal (NIT) w.e.f. 6-1-2006
Direct appeal to High Court from 1-10-98 onwards
Appeal to Supreme Court after 1-10-98 [Section 261]
Timelines for Filing Appeal to High Court
 
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