How to file an appeal with ITAT?

Introduction

ITAT i.e. Income Tax Appellate Tribunal is a quasi-judicial authority. It looks into litigation cases for the Direct Taxation Regime (i.e. only Income Tax cases currently as wealth tax was abolished w.e.f FY 2015-16) and is the final authority for judgments pertaining to facts. In other words, ITAT is the final fact-finding authority and 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 non-questionable. However, if there exists a question on the base-law itself (including its interpretation), an appeal may be filed with the High Court. It is important to note that even if the appeal is allowed, no facts shall be re-examined by the High Court and the facts confirmed by ITAT shall be final. The High-court will examine the appeal only on the limited grounds of the question of law raised.

Who can file an appeal with ITAT?

Before filing an appeal it is important to keep in mind that “Right to Appeal” is a statutory right and not a natural right. This means that an appeal can be filed and allowed only if there is a stated provision in the relevant statue giving such a right. Hence it is important to first check if you are eligible to file an appeal with ITAT.

The first and foremost step to determine if you can file an appeal with the ITAT is to determine the permitted orders. An appeal to ITAT may be filed by –

1. The Income Tax Department (ITD) or
2. The assessee

Appeals by ITD

The appeals by ITD shall be only filed 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 –

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

This means that the ITD can file an appeal only and only against the decision of the Commissioner of Income Tax (Appeals) and the tax revenue if the litigation is decided in favor of department, exceeds INR 10,00,000 (excluding the interest and penalties on the original tax amount under dispute).

Appeals by Assessee

Orders against which an assessee can file an appeal are –

1. The order passed by Commissioner of Income Tax (Appeals) u/s –
   1. 154
   2. 250
   3. 270A
   4. 271A
   5. 272A
2. The order passed by Commissioner of Income Tax (Exemptions) u/s –
   1. 12AA
   2. 80G(5)
3. The order passed by Commissioner of Income Tax u/s–
   1. 263
   2. 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)) –
   1. 143 (3)
   2. 147
   3. 153A
   4. 153C or
   5. 154 (in respect of such order) (GAAR)

(Note: In accordance with Finance Act, 2016, no appeal to ITAT can be made against the order of AO, in pursuance of the Dispute Resolution Panel (DRP). This means that when an assessee opts to abide by the decision of the DRP, the order shall be final, binding, and non-appealable.)

Time-limit for filing an appeal with ITAT

The time-limit for filing an appeal with ITAT is as below –

Form of filing appeal with ITAT

The general form for Filing an appeal with the ITAT is Form36. The format of Form 36 is attached herewith for download –

Form of filing Cross Objection with ITAT

Cross-objections (objection against the appeal already filed by the other party) is to be filed with the ITAT in Form 36A. The format of Form 36A is attached herewith for download –

Form of 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. Also, a mistake can be rectified if and 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

There is no specific format for filing a stay application as well. 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

Other Points to be considered while filing appeal/cross-objections with ITAT

• Both the above documents should be filed in Triplicate along with –
  • Two copies of the order appealed against (at least one copy of the same should be a certified copy)
  • Two copies of the relevant order from the assessing officer, if any (This is applicable when the 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)
  • Challan for payment of taxes for filing the appeal (Appeal filing fees)
  • Two copies of GOA / SOF
  • A paper-book containing the relevant case-laws cited in the GOA and SOF
  • A Letter of Authority / Power of Attorney (PoA).

This can also be submitted at the time of the first hearing, if not done alongside the filing of the application. Remember to have the PoA on a stamp paper and duly notarized

Fees for filing an appeal to ITAT

E-filing of Appeal to ITAT

The ITAT website official states the good intentions of the ITAT to digitalize the appeal filing procedure. However, the same feature is under development and hence ITAT appeals cannot be filed online currently.

Wrapping Up

For now, I would wrap up, hoping the above information helps you to have a preliminary clarity and knowledge on the topic of filing an appeal with ITAT. However, shall you have any concerns, suggestions, or points to discuss, do feel free to reach me out at caheergajjar@gmail.com.