How to File an Appeal with Income Tax Appellate Tribunal

Last Updated On: July 27, 2020, 1:12 p.m.
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FILING AN APPEAL WITH ITAT

Income Tax Appellate Tribunal is a quasi-judicial Institution which deals with appeals under the Direct Taxes. The orders passed by the ITAT is finalized. No order passed by ITAT can be appealed against unless it involves a substantial question of law.

In other words, all the facts determined and assessed by the ITAT are final and cannot be questioned. In case, if a question arises on the base-law, an appeal may be filed with the High Court. Even if the appeal is allowed, no facts shall be re-examined by the High Court and the facts confirmed by the ITAT is final.

 

Who can file an appeal with ITAT?

“Right to Appeal” is a statutory right and not a natural right, it is very important to keep in mind before filing an appeal. This means an appeal can be filed and allowed only if there is a stated provision in the relevant statue giving such rights.

It is very important to check if you are eligible to file an appeal with ITAT. The first step is to determine if you can file an appeal with the ITAT. An appeal to ITAT can be filed by-

  • The Income Tax Department or,
  • Assessee

 

Let us get to know in detail in both the cases

1. Appeals by Income Tax Department:

The appeals by ITD shall be filed only with the ITAT if the same is authorized by the Commissioner of Income Tax (CIT).

CIT can authorize to file an appeal with ITAT if-

  • He objects to the order passed by CIT (A) irrespective of the section under which the original order was passed.
  • The tax to be collected by revenue as a result of such litigation exceeds INR 10,00,000

This states that the ITD can file an appeal only against the decision of the Commissioner of the Income Tax and the Tax revenue, if the litigation is decided in the favour of the department, exceeding INR 10,00,000.

 

2.Appeals by Assessee:

1. The order passed by Commissioner of Income Tax (Appeals) u/s –

  • Section 154
  • Section 250
  • Section 270A
  • Section 271A
  • Section 272A

2. The order passed by Commissioner of Income Tax (Exemptions) u/s –

  • Section 12AA
  • Section 80G(5)

3. The order passed by Commissioner of Income Tax u/s–

  • Section 263
  • Section 270A

4. An order passed by Assessing Officer under the following sections (with approval of Pr. Commissioner or Commissioner as referred to in sec 144BA (12)) –

  • Section 143 (3)
  • Section 147
  • Section 153A
  • Section153C or
  • Section 154 (in respect of such order) (GAAR)

 

The time limit for filing an appeal with Income Tax Appellate Tribunal:

Sl.No Type of Filing Form Time limit
1. Appeal Form 36 Within 60 Days from the date of communication of the order appealed against by the appellant
2. Cross-Objection Form 36A Within 30 Days from the date of receipt of notice that the appellant has filed an appeal
3. Condonation of Delay - When the above time-lines have not been complied with, a condonation for the delay is required to be filed with the ITAT. For such applications, it is at the discretion of ITAT to permit or reject the appeal.

 

Key points to be noted while filing appeal/Cross-objection with ITAT:

  1. Filing an appeal and Cross-objection should be filed with the documents in Triplicate along with-
  2. Two copies of the order appealed against (at least one copy of the same should be a certified copy)
  3. Two copies of the relevant order from the assessing officer, if any (This is applicable when first order was passed by an AO and the same was subsequently appealed against before CIT (A) / PCIT and then an appeal is being preferred against with the ITAT)
  4. Challan for payment of taxes for filing the appeal (Appeal filing fees)
  5. Two copies of GOA / SOF
  6. A paper-book containing the relevant case-laws cited in the GOA and SOF
  7. A Letter of Authority / Power of Attorney (PoA).

Note: This can be submitted at the first time of the hearing, if not done along with the filing of an application, remember to have the PoA on stamp duty and duly notarized.

 

Fees for filing an appeal with ITAT:

Sl No: Particulars Rs.
1 Total assessed Income less than or equal to INR 100,000/- 500
2 Total assessed Income between INR 100,000/- to 200,000/- 1,500
3 Total assessed Income more than INR 200,000/-

Lower of –

1. 1% of total assessed Income

2. Rs.10,000

4 All other appeals (except an application for rectification of mistake) 500
5 Application for Rectification of Mistake 50
6 Application for filing of Cross Objection Nil

 

E-filing an appeal with ITAT:

The ITAT official website to digitalize the appeal filing procedure. The feature is under development process. Currently, ITAT appeals cannot be filed online.

 

Form for Filing Miscellaneous Application and Stay Application 

Miscellaneous Application

There is no specific prescribed format for filing any miscellaneous application. However, it should necessarily have precise and clear details of the mistake sought to be rectified. A mistake can be rectified only if the same is apparent from the records and within 6 months from the date of communication of the order to the assessee. 

Stay Application

Likewise, there is no specific format for filing a stay application. However, the following facts should be included in the same –

  • Facts regarding demand of tax, interest, penalty, fine and any other sum which is demanded and for which stay order is sought
  • Order of CIT (A), if any
  • A copy of the Demand Notice
  • A bifurcation of the total sum demanded as per notice and the sums as below –
  • Sum already Paid
  • Disputed sums and
  • Undisputed amounts
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