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Appeal to Commissioner of Income Tax

Last updated : March 19th, 2020 03:24 pm

Appeal to Commissioner of Income Tax

During an Income Tax Assessment, there may be instances when the taxpayer is not satisfied with the assessment made by the Assessing Officer. In these occurrences, the taxpayer is entitled to file an appeal against the Assessing Officer. The appeal of an income tax order has to be filed before the Commissioner of Income Tax (Appeals). In this article, we briefly discuss the various prerequisites required to file an appeal with the Commissioner of Income Tax (Appeals).

Appealable Order

Section 246A of Income Tax Act enumerates the orders against which an appeal can be filed before the Commissioner of Income Tax (Appeals). All appeals have to be made to the Commissioner of Income Tax (Appeals), who is considered to be the first appellate authority. An appeal can be made under the following circumstances:

• When a taxpayer is served with an order where he is not liable to pay tax under the Income Tax Act.
• When a taxpayer is issued a notice under Section 143(1)/1(B) where Income remitted in the returns of income have been adjusted.
• When a taxpayer is issued with a notice under Section 200A(1) where the filed statements have been adjusted.
• When an assessment order has passed under Section 143(3) other than cases when an order has passed under the Dispute Resolution Panel.
• When an assessment order has been passed under Section 144.
• When an order of assessment, re-assessment or re-computation that has been passed after reopening the assessment according to Section 147 other than cases when an order has passed under the Dispute Resolution Panel.
• When an order has been issued according to Section 150.
• When an order of assessment or reassessment has been passed under Section 153A or Section 158C during search or seizure.
• When an assessment or reassessment order has been passed under Section 92CD(3).
• When a rectification order has been passed under Section 154 or Section 155.
• When the taxpayer is considered to be an agent of a non-resident under Section 163.
• When an order has been passed under Section 170 (2)/(3) taxing the successor in the business for the income that is earned by the predecessor.
• When an order has been passed under Section 171 that records the findings of the Hindu Undivided Family.
• When an order has been passed by the Joint Commissioner under Section 115 VP(3) that declines the approval to opt tonnage-tax scheme for qualifying shipping companies.
• When an order has been passed under Section 201(1)/206C(6A), where a person has defaulted in terms of non-deduction of tax at source, non-collection of tax at source or non-payment of credits to the government.
• When an order has been issued for the refund according to Section 237.
• When an order has been issued for commanding penalty according to Section(s)221/271/271A/271AAA/271F/271FB/272A/272AA/272B/272BB/275(1A)/158B FA(2)/271B/271BB/271C/271CA/271D/271E/271AAB.

Time Limit for Appealing

An appeal for any assessment or penalty should be made within 30 days from the date of service of the demand notice. An appeal by a person who fails to withhold TDS (Tax Deducted at Source) shall be filed within 30 days of the date of payment of tax. In all other cases, an appeal can be made within 30 days from the date of issuing the intimation of the particular order.

Procedure to Appeal

To appeal an income tax assessment, the taxpayer must submit an application in Form 35. On submission of Form 35, the Commissioner of Income-tax (Appeals) schedules a date and place for hearing the appeal. The appointed date and place will be announced to the taxpayer and to the Assessing Officer by issuing a notice to both the parties. During the appeal, the taxpayer and the Assessing Officer can appear personally or through a representative. The Commissioner of Income Tax (Appeals) hears the appeal and postpones the appeal from time to time (if required), the officer would also make inquiries for the appeal and directs the Assessing Officer to conduct further inquiries and submit the report. Taxpayers should note that prior to the time of filing a petition to a court in relation to matters of dispute in Income Tax, the taxpayer should first exhaust the legal remedies by filing an appeal with the commissioner having the relevant jurisdiction.

Documents Required

The following documents have to be submitted for appeal:

• Form 35
• A copy of the income tax assessment order
• Original Demand notice
• Copy of the challan used to make the payment of Income Tax, provided that the payment pertains to the relevant assessment

The form of the appeal has to be signed and verified by the following personnel:

• If an appeal is made by a taxpayer, the form has to be signed by the taxpayer or a representative of the individual.
• If an appeal is made by a Hindu Undivided Family, the form has to be signed by the Karta or other elder members of the family.
• If an appeal is made by a company, the form has to be signed by the Managing Director or other directors of the company.
• If an appeal is made by a foreign company, the form has to be signed by the representative of the company.
• If an appeal is made by a firm, the form has to be signed by the Managing Partner or other partners who are not minors.
• If an appeal is made by an LLP, the form has to be signed by the Designated Partner or other partners.
• If an appeal is made by a Local Authority, the form has to be signed by the Principal Officer.
• If an appeal is made by any Political Party, the form has to be signed by the Chief Executive Officer of the Party.
• If an appeal is made by any association, the form has to be signed by the Principal Officer or any member of that Association.
• If an appeal is made by a person, the form has to be signed by that person or any other person on his/her behalf.

Fee for Appeal

The fee structure to file an appeal before the Commissioner of Income Tax (Appeals) is given below:

• If the total income determined by the Assessing officer is less than or equal to Rs. 1,00,000, the appeal fee is Rs.250.
• If the total income determined by the Assessing officer is more than Rs. 1,00,000 but less than Rs. 2,00,000, the appeal fee is Rs. 500.
• If the total income determined by the Assessing officer is more than Rs. 2,00,000, the appeal fee is Rs. 1,000.
• For other appeals, the fee would be Rs. 250.