can a revised order u/s143(3)of cit(a)be further appealed? If yes, then within how many days. if there is delay in filling the appeal will it be condoned.
21 November 2012
Appeal before the Appellate Tribunal:
Second AppealEither party aggrieved by an order of the Commissioner of Income Tax (Appeals) can prefer an appeal to the Income Tax Appellate Tribunal (referred to as ITAT or Tribunal). The appeal to the Tribunal can arise on points of law or of facts or a combination of both. The tribunal is the last fact-finding authority under the Income Tax Act and this fact needs to be kept in mind when presenting matters before it. No fresh facts would be considered by the higher appellate authorities, and this needs to be kept in mind in presenting appeals before the ITAT. The eligibility to file appeals is circumscribed by the Act only to the extent that Appeal by assessee is possible against any order of CIT (A) and against any order of CIT u/s 12AA, 263, 272A,115VZC. The department is entitled to file an appeal against any order of the Commissioner of Income Tax (Appeals).
Points noted earlier in regard to the right of appeal etc. which are common at the first and second appeal stage are not repeated in regard to procedure relating to ITAT. It may however, be noted that the time limit for filing appeal to the ITAT is as under ……..
Time limit: u/s 253(2) / 253(4) 1. 60 days from the date of receipt of order under appeal 1. 30 days for filing cross objection u/s 253 (4) from the date of receipt of intimation of department having filled appeal.
Grounds of Appeal 1.It is important to remember that the purpose of filing an appeal is to get redressal in regard to the perceived injustice. If this objective is to be achieved it is necessary to ensure that the grievance is properly communicated to the appellate authority. Making dramatic claims and bringing in irrelevant factors such as the social or economic status of the assessee, or the benefits society derives from his actions may serve no purpose. This is on account of the fact that the appellate proceedings under the tax laws are well structured. Therefore, if the cause of grievance i.e. the grounds are not stated properly at the time of filing of appeal, the arguing counsel would face substantial difficulty. More importantly the issue to be decided by the appellate authority is specifically the grounds of appeal raised by the appellant. If the grounds are not clear and precise it is difficult for the appellate authority to formulate and thereafter to adjudicate upon a proposition of law. One must keep in mind that even though oral representation is made before the CIT (Appeals) and the tribunal, what remains as a matter of record is the written representation, and therefore, it is necessary that due care is taken in drafting. 2.It may be noted that the Tribunal is entitled to reject the memo of appeal, if the grounds are not clearly and pecifically stated. One must take care to ensure that the grounds are not argumentative or repetitive. Some of the points to be noted in presentation of grounds are as under. 3. All the causes for grievance need to be included in the grounds. E.g. Even if an assessee is aggrieved by the addition and the chances of success are limited on account of factual weaknesses or legal interpretation, the assessee should take that ground. A common example is reopening of assessment. The power of assessing authority to reopen the assessment are now substantially wide. However, the law on the subject is continuously evolving and it may so happen that at the time that the appeal is fixed, an interpretation of law in favor of the assessee may be available. It is therefore advisable to include all the grounds on which the assessee is aggrieved. 4. Grounds should be brief and concise – In the grounds of appeal, the assessee must only state the cause of grievance. E.g. “The learned Assessing Officer has erred in treating expenditure on repairs of Rs. _____ as a capital expenditure.” The grounds are not arguments and they should not be argumentative. One has strike the right balance between grounds being adequately clear without any significant matter being omitted and yet concise.
5.Grounds must be serially numbered and if an assessee is aggrieved by the addition for 2 or 3 reasons, the ground should be divided into sub-clauses. E.g. a particular disallowance may be erroneous for 2 of 3 different reasons, and those 2 or 3 different reasons may be stated by way of sub-clauses. 6. Alternative grounds: – All issues to be raised should be mentioned in the grounds of appeal. Thus if there is a technical infirmity in the order this should be raised even if one is separately arguing on merits of the case. It is possible that the assessee may want to prefer an alternate plea. E.g. Assessing Officer may have treated revenue expenditure as a capital expenditure and not allowed depreciation on the same. The assessee’s alternate plea would therefore be as follows i) The learned Assessing Officer has erred in treating the expenditure of Rs. ____ as capital expenditure. ii) In the alternate and without prejudice to the above, the learned Assessing Officer has erred in not allowing depreciation of Rs. _____ on the said expenditure of Rs. ________ treated by him as capital expenditure. 7. Often, the assessee and their Chartered Accountants tend to confuse between the grounds of appeals, and statement of facts. In the statement of facts, the assessee states the facts related to the grievance and gives factual narration of the actions of the Assessing Officer. It is on the basis of this statement of facts that grounds of appeals are prepared. 8.If a fact is incorrectly stated by the assessing authority that should be specifically challenged in the grounds of appeal. This is so, because if the factual inaccuracy is not controverted at the later stages of appeal, the appellate authorities are inclined to accept the proposition as stated in the assessment order. 9. At the conclusion of grounds of appeal, it is advisable to include a prayer for permission to present alternate and additional grounds.
Delay in filing Appeal:
The condonation of delay for non-filing of appeal is to be considered in the light of the facts of the case and existence of sufficient cause or reasonable cause. In the absence of any reason, delay cannot be condoned and where there was actual negligence and inaction which led to in inordinate delay, the delay cannot be condoned
Querist :
Anonymous
Querist :
Anonymous
(Querist)
21 November 2012
thanks sir.
can the said order be appealed for revision u/s 264.
21 November 2012
The Commissioner shall not revise any order under section 264 in the following cases—
a) where an appeal against the order lies to the Deputy Commissioner (Appeals)] [or to the Commissioner (Appeals)] or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal[to the Commissioner (Appeals) or] to the Appellate Tribunal, the assessee has not waived his right of appeal; or
b) where the order is pending on an appeal before the Deputy Commissioner Appeals)]; or c) where the order has been made the subject of an appeal [to the Commissioner (Appeals) or] to the Appellate Tribunal.
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