How to file Income Tax Appeal before Commissioner (Appeals)

Date: 15-7-2015

When Appeal Can Be Filed Before Commissioner?

Appeal can be filed before Commissioner (Appeals), when a tax payer is adversely affected by Orders passed by AO.

What should be the Form of Appeal and How to Fill the same?

Every appeal to the Commissioner (Appeals) is to be filed in Form No. 35. In this form, details such as name and address of the tax payer, Permanent Account Number (PAN), assessment year, details of the order against which appeal is filed etc. are to be filled in.

 Who has to sign Form No. 35?

(1)     In case of appeal by an individual taxpayer, by the individual taxpayer himself or by a person duly authorised by him who is holding a valid power of attorney
(2)     In case of a Hindu Undivided Family, by the Karta of the family or if Karta is absent from India or is not capable for signing, by any other adult member of such family.
(3)     In case of a company, by the Managing Director or if Managing Director is not available or where there is no Managing Director by any director of the company.
(4)     In case of foreign company, by a person who holds a valid power of attorney from such company.
(5)     In case of a firm, by the Managing Partner or if Managing Partner is not available or where there is no Managing Partner by any partner (not being a minor)
(6)     In case of a LLP, by the Designated Partner or if Designated Partner is not available or where there is no Designated Partner by any partner.
(7)     In case of a Local Authority, by the Principal Officer thereof
(8)     In case of a Political Party, by the Chief Executive Officer of such party
(9)     In case of any other Association, by the Principal Officer thereof or by any member of the Association.
(10)   In case of any other Person, by that Person or by some person competent to act on his behalf.

Pre-deposit of tax:

Before filing the appeal, the taxpayer should pay the tax determined as per the return of income filed by him.

If no return of income is filed, the taxpayer should pay tax equal to the amount of advance tax payable by him. However, on application made by the taxpayer, the Commissioner of Income-tax (Appeal) may exempt the taxpayer from payment of tax before filing the appeal. Such benefit is granted if good and sufficient reason is proved by the taxpayer for non-payment of tax before filing the appeal.

Documents to be submitted for appeal

1. Form No. 35 (including Statement of Facts and Grounds of Appeal) - in duplicate.
2. One certified copy of order, appealed against.
3.Notice of demand in original.
4. Copy of challans of fees.

 Appeal fees:

Fees to be paid before filing appeal to the Commissioner (Appeals) depends upon total income determined by the Assessing Officer.

 By when can appeal be filed before Commissioner (Appeals)?

Appeal is to be filed within 30 days of the date of service of notice of demand relating to assessment or penalty order or the date of service of order sought to be appealed against, as the case may be.

The Commissioner of Income-tax (Appeals) may admit belated application on sufficient cause being shown. Application for condonation of delay in filing the appeal, giving the reasons for the delay, along with necessary evidences should be filed with Form No. 35 (i.e., form of appeal). The Commissioner of Income-tax (Appeals) can condone the delay in filing the appeal if genuine reason exists for delay.

 Appeal Procedure:

1.      After the receipt of Form no. 35, the Commissioner of Income-tax (Appeals) will fix the date and place for hearing the appeal.
2.      The date and place will be communicated to the taxpayer and to the Assessing Officer against whose order appeal is preferred. The communication will be made by issuing a notice to both the parties.
3.      In the appeal proceedings the taxpayer or the Assessing Officer can either appear personally or can appear through an authorized representative.
4.      The Commissioner of Income-tax (Appeals) would hear the appeal and may adjourn the appeal from time-to-time.
5.      Before passing the order, the Commissioner of Income-tax (Appeal) may make such further inquiries as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result to him. 6.During the course of appeal, the Commissioner of Income-tax (Appeals) may allow the taxpayer to go into additional grounds of appeal . However, additional grounds will be accepted only if the Commissioner of Income-tax (Appeals) is satisfied that omission of these grounds from the form of appeal was not willful or unreasonable. Additional grounds means grounds which are not specified in Form no. 35

 Filing of additional evidence:

During appeal proceedings, the tax payer is not entitled to produce any evidence, whether oral or documentary other than what was already produced before the Assessing Officer. However, in following circumstances additional evidence will be accepted by the Commissioner of Income-tax (Appeals)

(a)     Where the Assessing Officer has refused to admit evidence which ought to have been admitted; or
(b)     Where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to be produced by the Assessing Officer; or
(c)     Where the appellant was prevented by sufficient cause from producing any evidence before the Assessing Officer which is relevant to any ground of appeal; or
(d)     Where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

Normally, the taxpayer has to make an application for acceptance of additional evidences. In other words, the additional evidences are to be accompanied with an application stating the reasons for their admission.

 Appeal Decision:

 After the hearing is concluded, Commissioner (Appeals) passes order in writing, disposing of the appeal and stating the decision on each ground of appeal with reasons.