I. APPEALS

Section

Appellate Authority

Time Limit

Filing fees

Form 
No.

Documents to be   submitted/attached

Remarks

246A

CIT(A)

1) 30 days from the date of receipt of notice of demand. Sec. 249(2)

2) CIT(A) has power to 
condone delay u/s 249(3) on showing Sufficient cause.

a) Court fee stamp of 50 paise on Form No. 35 and of 65 paise on copy of Assessment order.

b) Appeal fees: 1. Rs.250. 
a) Where assessed total income is Rs. 1 lakh or less.

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

2. Rs. 500, where assessed total income is more than Rs. 1 lakh but not more than Rs. 2 lakhs.

3. Rs.1,000, where assessed total income is more than Rs.2 lakhs.
 

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.

5) CIT(A) has to adjudicate the matter in appeal before him. He has no power to set aside order to AO.

248

CIT(A) above

Same as

Filing Fee 250/-

35

Same as above to the extent applicable.

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.)]

5) Appeal to be signed by the person responsible for payment of income from which TDS is deductible u/s 195.

253

ITAT

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

(ii) S.253(5) empowers 
the ITAT to condone 
the delay on showing 
sufficient grounds.

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.

c) 1% of assessed income subject to maximum of Rs.10,000 where assessed income is 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.

10. Affidavit stating reasons for delay in filing appeal beyond 60 days in delayed filing.

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 Computervs. 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.)]

5. The fee payable for filing appeal before the ITAT in cases assessed ‘losses’ is Rs. 500 as the assessed ‘income’ is less than monitory limit Rs. 1 lac prescribed. [Gibbs Computer vs. ITAT(Bombay HC) 317 ITR 159]

253(4) (Cross Objec- tion)

ITAT

30 days of receipt of notice of appeal by other party

NIL

Same as above (except instead of Form 36, Form 36A)

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.

ii. The cross objection need not be confined to the points taken by the opposite party in the main appeal. The assessee can challenge the order of the deptt. not only in the quantum of tax amount but other points also.

II. REVISIONS

Section

Subject matter of revision

Who can revise

Time limit

Remarks

263

Any order passed by the Assessing Officer which is erroneous and prejudicial to the interest of the revenue

CIT

2 years from the end of the financial year in which order sought to be revised was passed except in situation enumerated u/s 263(3).

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.

6. An appeal against the order of CIT u/s 263 lies in ITAT u/s 253.

264

Any order passed by the officer subordinate to CIT Exception:

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

2. Where appeal lies before CIT(A) / ITAT or the time limit for filing the appeal has not expired.

CIT

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

b) If assessee makes an application-1 year from date of communication/ knowledge of the order (CIT has power to condone delay), order to be passed within one year from the end of the F.Y. in which application is made.

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.

5. The order of CIT u/s 264 is not appealable before ITAT u/s 253 or High Court u/s 260A. However, a petition for Writ of Certiorari under Article 226 of the Constitution for quashing the order of CIT will lie in appropriate cases.

III. RECTIFICATION

Section

Subject matter of rectification

who can rectify

Time limit

What can be rectified

Remarks

154

(a) Any order passed by an IT authority under the provisions of IT Act.

(b) Intimation or deemed intimation u/s. 143(1)

The Co-ordinate or superior IT authority passing the original order

4 years from the end of the financial year in which order was passed.

Any mistake ‘app-arent’ from the record.

1. Debatable/controversial issues cannot be rectified u/s 154.

2. An appeal lies against rectification orders.

3. An appeal lies against refusal to rectify the mistake.

4. Rectification order having effect of enhancing liability or reducing refund could be passed only after opportunity of hearing to the assessee.

5. Rectification Application shall be disposed of within six months from the end of the month in which the application is made.

254(2)

Any order passed by ITAT

ITAT

4 years from the date of the order.

-do-

1. Filing Fee – Rs. 50/-

2. Meaning of expression ‘mistake apparent’ highly controversial in the wake of divergent judicial pronouncements.

3. Failure to consider material on record or order of ITAT, based on erroneous assumption of facts, non consideration of grounds, failure to consider alternate grounds, non consideration of relevant provisions of law/ rule/ binding decisions inter aliaare some of the grounds for rectification.

4. The ITAT cannot ‘review’ its order passed on merits in the garb of ‘rectification’ by resorting to S. 254(2).