Appeal before ITAT
Appellable order: section 253(1)
- (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order—
(a) an order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998] or, as the case may be, a Commissioner (Appeals) under section 154, section 158BFA, section 250, section 270A, section 271, section 271A, section 271AAB, section 271AAC, section 271AAD] 48[, section 271J or section 272A; or
(aa) an order passed by a Joint Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A, section 271AAC, section 271AAD or section 271J; or
(b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997; or
(ba) an order passed by an Assessing Officer under sub-section (1) of section 115VZC; or
(c) an order passed by,—
(i) a Principal Commissioner or Commissioner under section 12AA or section 12AB or under clause (vi) of sub-section (5) of section 80G or under section 263 or under section 270A or under section 271 or under section 272A or an order passed by him under section 154 amending any such order; or
(ii) a Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General or a Principal Director or Director under section 263 or under section 272A or an order passed by him under section 154 amending any such order; or
(d) an order passed by an Assessing Officer under sub-section (3), of section 143 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;
(e) an order passed by an Assessing Officer 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 sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order;
(f) an order passed by the prescribed authority under sub-clause (iv) or sub-clause (v) or] sub-clause (vi) or sub-clause (via) of clause (23C) of section 10.
Time period for filing appeal: section 253(3)
Every appeal under sub-section (1) or sub-section (2) shall be filed within 2 months from the end of the month in which the order sought to be appealed against is communicated to the assessee or to the Principal Commissioner or] Commissioner, as the case may be :
Provided that in respect of any appeal under clause (b) of sub-section (1), this sub-section shall have effect as if for the words “60 days”, the words “30 days” had been substituted. This is related to order in the case of search/ requisition cases where order passed before the 1st day of January, 1997;
Memorandum of cross-objections: section 253(4)
The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against an order, has been preferred under sub-section (1) or sub-section (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 such order], and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
Condonation of delay: section 253(5)
The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in section 253(3) or section 253(4), if it is satisfied that there was sufficient cause for not presenting it within that period.
Fee for appeal : section 253(6)
An appeal to the Appellate Tribunal shall be in the prescribed form ( appeal form is form 36/ memorandum of cross objection in form 36A) and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,—
(a) where the total income of the assessee as computed by the Assessing Officer, in the case to which the appeal relates, is Rs. 1 lakh or less, fee shall be Rs 500/-,
(b) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than Rs. 1 lakh but not more than Rs. 2 lakh , fee shall be Rs 1500/-,
(c) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than Rs. 2 lakh , 1% of the assessed income, subject to a maximum of Rs 10,000/-,,
(d) where the subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), Rs 500/-,
No appeal fee: Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) which tax department appeal or, a memorandum of cross objections referred to in section 253(4).
Fee for stay of demand application: An application for stay of demand shall be accompanied by a fee of Rs 500/-.
Fee for rectification of order: fee of Rs 500/-.
Order of tribunal : section 254(1)
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.
Order may be confirm, set aside, remand back to appellate authority or AO etc.
Rectification of mistake by amendment in order: section 254(2)
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 rectifying any mistake apparent from the 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 the [Assessing] Officer :
Principle of natural justice to be followed by providing opportunity of being heard before passing adverse order:
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard:
Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of Rs 500/-.
Time period for disposal of appeal: section 254(2A)
In every appeal, 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 section 253(1) by taxpayer or section 253(2) by tax department.
Note: above time period of 4 years is recommendatory in nature
Stay order up to maximum 180 days on pre-deposits: Provided that 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 sub-section (1) of section 253, for a period not exceeding 180 days from the date of such order subject to the condition that the assessee deposits not less than 20% of the amount of tax, interest, fee, penalty, or any other sum payable under the provisions of this Act, or furnishes security of equal amount in respect thereof and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order:
Extension of stay not permissible if appeal not disposed of within stay period:
Provided further that no extension of stay shall be granted by the Appellate Tribunal, where such appeal is not so disposed of within the said period of stay as specified in the order of stay, unless the assessee makes an application and has complied with the condition referred to in the first proviso and the Appellate Tribunal is satisfied that the delay in disposing of the appeal is not attributable to the assessee, so however, that the aggregate of the period of stay originally allowed and the period of stay so extended shall not exceed 365 days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed:]
Maximum stay period in aggregate 365 days Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed 365 days, 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.
Cost order: The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal. [Section 254(2B)]
