Direct & Indirect Taxes, Tax Ready Reckoner, Tax Management, Tax Act. & Rules, Tax Planning & Tax Savings.

Direct & Indirect Taxes, Tax Ready Reckoner, Tax Management, Tax Act. & Rules, Tax Planning & Tax Savings.

Appeals to Appellate Tribunal [Section 253(1) and (2)]

Appeals to Appellate Tribunal [Section 253(1) and (2)]
Appeals to Appellate Tribunal [Section 253(1) and (2)]

(A) [Section 253(1)]- Orders against which Appeal may be filed by the assessee:

As per section 253(1), any assessee may file an appeal before the Appellate Tribunal against the following orders:

(a)        an order passed by Commissioner (Appeals):

(i)           under section 250 i.e. order passed on the appeal filed before him.

(ii)          order under section 270A.

(iii)         imposing penalty under sections 271, 271A, 271AA, 271G. 271J and 272A.

(iv)     under section 154 regarding rectification of mistakes in an order passed under section 250 or in an order imposing penalty under the above sections, if the rectification has not been done/satisfactorily done by him.

(b)        an order passed by a Principal Commissioner or Commissioner:

(i)      under section 12AA (or 12AB inserted by the Finance Act, 2020, w.e.f. 1.6.2020) refusing to grant registration to a trust or institution;

(ii)          under section 80G(5)(vi) refusing to grant approval to the institution or fund;

(iii)    under section 263 relating to revision of erroneous order passed by Assessing Officer;

(iv)          under section 270A

(v)           Imposing penalty under section 271 or section 272A; or

(vi)          under section 154 amending his order under section 263 or order of penalty.

(c)      order imposing penalty passed by a Principal Chief Commissioner or Chief Commissioner, Principal Director General or Director General or Principal Director or Director under section 272A.

(d)        an order passed by Assessing Officer

(i)      under section 115VZC(1) with the previous approval of Chief Commissioner excluding the shipping company from Tonnage Tax Scheme due to any transaction or arrangement referred to in section 115VZB(1) which amounts to an abuse of the Tonnage Tax Scheme.

(ii)     under section 143(3) or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order.

(iii)    under section 143(3) or section 147 or section 153A or section 153C with the approval of the Principal Commissioner or Commissioner as referred to in section 144BA(l2) or an order passed under section 154 or section 155 in respect of such order.

(e)     an order passed by the prescribed authority under section 10(23C)(iv), (v), (vi) and (via). In other words, fund or institution established by charitable purposes having regard to its importance throughout India or any State, trust wholly for public religious purposes and wholly public religious and charitable purposes, or universities and other educational institutions or hospital and medical institutions can now file an appeal to the Tribunal against the order of rejection of the application made for approval of the said institution.

See also  First Appeal Filed by the Assessee

(B) [Section 253(2)]- Principal Commissioner or Commissioner may also direct the A.O. to file an appeal :

The Principal Commissioner or Commissioner may also, if he objects to any order passed by the Commissioner (Appeals) under section 154/250, direct the Assessing Officer to appeal to the Appellate Tribunal against the order.

1.   Procedure for filing appeal to Appellate Tribunal [Section 253(3), (3A) (4), (5) and (6)]

(1) [Section 253(3)]- Time limit for Filing Appeal:

The appeal to the Appellate Tribunal shall be filed within 60 days of the date on which the order sought to be appealed against, is communicated to the assessee or to the CIT. as the case may be.

(2) [Section 253(4)]- Filing of Cross Objections and Time Limit:

The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Commissioner (Appeals), has been preferred under section 253(1) or section 253(2) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof, within 30 days of the receipt of the notice, file a memorandum of cross- objections, verified in the prescribed manner, against any part of the order of the Commissioner (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in section 253(3).

(3) [Section 253(5)]- Condonation of delay of time limit:

 The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross objections after the expiry of 60/30 days, if it is satisfied that there was sufficient cause for not presenting it within the specified period.

(4) Prescribed forms and documents to accompany [Section 253(6) and Rule 47J:

The appeal to the Appellate Tribunal shall be in Form No. 36 and memorandum of cross objections in Form No. 36A. The appeal and memorandum etc. are to be filed in triplicate and shall be accompanied by two copies (at least one of which should be a certified copy) of the order appealed against and two copies of the order of the Assessing Officer. Two copies of the grounds of appeal and statement of facts before the first appellate authority are also to be filed. In case the appeal is against an order levying penalty, two copies of the relevant assessment order should also be filed

The appeal against the assessment order passed in pursuance of the directions of the Panel (Dispute Resolution Panel) shall be filed before the Appellate Tribunal in Form No. 36B. (Omitted w.e.f. 1.6.2016)

Signing of appeal [Rule 47]:

Form No. 36, grounds of appeal at the verification should be signed by the person authorized to sign the return of income under section 140.

Fee for filing appeal [Section 253(6)]:

An appeal to the Appellate Tribunal shall be accompanied by a fee of—

 

(a) Where the total income/loss of the assessee as computed by the Assessing Officer in the case to which the appeal relates is Rs. 1,00,000 or less Rs. 500
(b) Where the total income/loss of the assessee as computed aforesaid is more than Rs. 1,00,000 but does not exceed Rs. 2,00,000 Rs. 1,500
(c) Where it exceeds Rs. 2,00,000 (subject to a maximum of rs. 10,000) 1% of the assessed income
(d) Where the subject matter of the appeal relates to any matter other than specified in clauses (a), (b) and (c) above Rs. 500

However, no such fee shall be payable in case—

See also  Procedure for Assessment of Search Cases-[Sections 153A, 153B and 153C]

(i)         the appeal is filed by the Principal Commissioner or Commissioner, or

(ii)     where the memorandum of cross objections is filed either by the assessee or the department.

2.   Procedure for Filing and Disposal of Stay-Petition

(1) Application for Stay of Demand [Rule 35A(1) of Income Tax Appellate Tribunal Rules, 1963]:

Every application for stay of recovery of demand of tax, interest, penalty, fine, or any other sum shall be presented in triplicate by the applicant in person, or by his duly authorised agent, or sent by registered post to the Registrar or the Assistant Registrar, as the case may be, in respect of which the stay application arises.

Separate applications shall be filed for stay of recovery of demand under different enactments.

(2) Particulars to he mentioned in the application of stay of demand [Rule 35A(2) of Income Tax Appellate Tribunal Rules. 1963]:

Every application shall be neatly typed on one side of the paper and shall be in English and shall set forth concisely the following:—

(i)      short facts regarding the demand of the tax, interest, penalty, fine, or any other sum, recovery of which is sought to be stayed;

(ii)        the result of the appeal filed before the Commissioner (Appeals), if any;

(iii)    the exact amount of tax, interest, penalty, fine, or any other sum demanded, as the case may be, and the amount undisputed therefrom and the amount outstanding.

(iv)       the date of filing the appeal before the Tribunal and its number, if known;

(v)     whether any application for stay was made to the revenue authorities concerned, and if so, the result thereof (copies of correspondence, if any, with the revenue authorities to be attached);

(vi) reasons in brief for seeking stay;

(vii) whether the applicant is prepared to offer security, and if so. in what form;

(viii) prayers to be mentioned clearly and concisely (stating exact amount sought to be stayed);

(ix) the contents of the application shall be supported by an affidavit sworn by the applicant or his duly authorised agent;

(3) [Section 254(7)]- Fee for Filing Application of Stay:

Every application for stay of demand should be accompanied by a fee of 5OO.
An application which does not conform with the above requirements is liable to be summarily rejected.

(4) Order of Stay [First proviso to section 254(2A)]:

 The Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under section 253(1), for a period not exceeding 180 days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order:

However, as per second proviso to section 254(2A). where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed 365 days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed:

See also  [Section 244A]- Interest Payable to Assessee

Further, as per third proviso to section 254(2A), if such appeal is not so disposed of within the period of 180 days or maximum period of 365 days, as the case may be, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.

3.   [Section 254]- Orders of Appellate Tribunal

(1) [Section 254(1)]- The Appellate Tribunal mar pass such orders thereon as it thinks fit:

The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

(2) [Section 254(2A)]- Order to be passed within 4 years if possible:

In an appeal filed by the assessee or Assessing Officer, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of 4 years from the end of the financial year in which such appeal is filed under sections 253(1) or (2).

(3) [Section 254(2B)]- Cost of any Appeal:

The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal.

(4) [Section 254(3)]- Tribunal to send the copy of the order:

The Appellate Tribunal shall send a copy of any orders passed by it to the assessee and to the Principal Commissioner or Commissioner.

(5 [Section 254(4)]-Order passed by Appellate Tribunal shall be final:

The order passed by Appellate Tribunal shall be final unless appeal is made under section 260A.

4.   [Section 254(2)]- Rectification of Mistake by the Tribunal:

The Appellate Tribunal may, at any time within 6 months from the end of the month in which the order was passed, with a view to rectify any mistake apparent from record, amend any order passed by it under section 254(1), and shall make such amendment if the mistake is brought to its notice by the assessee or Assessing Officer.

If the application for rectification is filed by the assessee. it shall be accompanied by a fee of Rs. 50.

An amendment, which has the effect of increasing the tax liability of the assessee. shall be made only after the assessee has been given a reasonable opportunity of being heard.

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