Form, Fee and Time Limit of Appeal to Commissioner (Appeal)

(A) Form of Appeal to Commissioner (Appeal) [Rule 45]:

  1. Form [Rule 45(1)]:
    An appeal to the Commissioner (Appeals) shall be made in Form No. 35.
  2. Manner of Furnishing the Appeal [Rule 45(2)]: 
    Form No. 35 shall be furnished in the following manner, namely:
    1. in the case of a person who is required to furnish return of income electronically under rule 12(3),—
      1. by furnishing the form electronically under digital signature, if the return of income is furnished under digital signature;
      2. by furnishing the form electronically through electronic verification code in a case not covered under sub-clause (i);
    2. in a case where the assessee has the option to furnish the return of income in paper form, by furnishing the form electronically in accordance with clause (a) of rule 45(2) or in paper form.
  3. Verification of Appeal [Rule 45(3)]: 
    The form of appeal referred to in rule 45(1), shall be verified by the person who is authorised to verify the return of income under section 140 of the Act, as applicable to the assessee.
  4. Manner of Furnishing the Accompanying Document [Rule 45(4)]:
    Any document accompanying Form No. 35 shall be furnished in the manner in which the said form is furnished.
  5. Procedure for Filing Appeal to be Specified [Rule 45(5)1]: 
    The Principal Director General of Income-tax (Systems) or the Director General of Income-tax (Systems), as the case may be, shall-
    1. specify the procedure for electronic filing of Form No. 35 and documents;
    2. specify the data structure, standards and manner of generation of electronic verification code, referred to in rule 45(2), for the purpose of verification of the person furnishing the said form; and
    3. be responsible for formulating and implementing appropriate security, archival and retrieval of policies in relation to the said form so furnished.

B. Fee for Filing Appeal [Section 249(1)]:

Form 35 shall be accompanied by a fee as under: `

  1. Where the total income/loss of the assessee as computed by the A.O. in the case to which appeal relates is Rs.1,00,000 or less : Rs. 250
  2. Where the total income/loss of the assessee, computed as aforesaid in the case to which appeal relates exceeds Rs. 1,00,000 but does not exceed Rs. 2,00,000 : Rs. 500
  3. Where total income/loss of the assessee, computed as aforesaid in the case to which appeal relates exceeds Rs. 2,00,000 : Rs. 1,000
  4. Where the subject matter of appeal relates to any matter other than specified in clauses (a), (b) and (c) above : Rs. 250

The fee should be credited in a branch of the authorised bank or a branch of the State Bank of India or a branch of the Reserve Bank of India after obtaining a challan from the Assessing Officer and a copy of challan sent to the Commissioner of Income-tax (Appeals).

C. Time Limit for Filing Appeal [Section 249(2)]:

The appeal should be presented within a period of 30 days of—

  1. the date of payment of tax, where appeal is under section 248; or
  2. the date of service of notice of demand relating to assessment or penalty if the appeal relates to assessment or penalty; or 
    However, where an application has been made under section 270AA(1), the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assessee, shall be excluded.
  3. the date on which intimation or the order sought to be appealed against is served if it relates to any other cases.

Exclusion of time for calculating time limit for filing appeal [Section 268]:

For this purpose, the date on which the order complained of is served is to be excluded. Further, if the assessee was not furnished with a copy of the order when the notice of the order (say notice of demand) was served upon him then the time required for obtaining a copy of the order should be excluded, i.e. period taken for obtaining the order shall be added to the time limit of 30 days.

D. Amount of Tax Payable before Filing Appeal [Section 249(4)]:

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

  1. where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or
  2. where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him. i.e. tax which is payable on income assessed under section 144 or 147. 
    However, where no return has been filed by the assessee, the Commissioner (Appeals) on an application made by the assessee, may, for any good and sufficient reason to be recorded in writing, exempt him from the payment of such tax.