1. Nature and structure of ITAT
The ITAT is a quasi-judicial body set up by the Central Government to deal with appellate matters under the Income Tax Act, 1961. The ITAT functions under the Ministry of Law and Justice. There are different benches of the ITAT for different regions having regional jurisdiction. The President of the ITAT constitutes a bench of an ITAT from amongst the members of the ITAT. Each bench shall consist of an accountant member and a judicial member. However, the President or any member of the ITAT may dispose of any appeal, where the total income as calculated by the Assessing Officer does not exceed Rs 50 lakh. In cases where required, the ITAT may constitute a special bench with three or more members to dispose of appeals, with at least one accountant member and one judicial member. The ITAT is also the final fact-finding authority. Any decision of the ITAT is final when it concerns factual matters.
2. Functions of the ITAT
Income Tax Appellate Tribunal hears appeals concerning orders passed by the income-tax authorities. It is the second forum to hear income-tax appeals after the Commissioner of Income-tax (Appeals). The ITAT functions under the supervision of the jurisdictional High Court and is subordinate to the High Court. The ITAT should follow the precedent set by the jurisdictional High Court. That means it is bound to follow the law laid by the High Court in a matter it is dealing with in appeal. Similarly, the ITAT should also follow the precedent or law laid by the Supreme Court of India.
3. Appealable orders
The following orders are appealable before the ITAT:
Orders passed by the Commissioner of Income Tax (Appeals) [CIT(A)].
Orders passed by the jurisdictional Commissioner.
Orders passed by the Assessing Officer as per the directions of the Dispute Resolution Panel.
Orders passed by the Assessing Officer.
Penalty order passed by the Commissioner.
Application for stay of tax demands.
Other miscellaneous applications for recall of orders.
4. Monetary limits applicable to the filing of appeals
The Central Board of Direct Taxes (CBDT) can issue orders or instructions or directions to the income-tax authorities. The CBDT can also fix the monetary limits to regulate the filing of appeal or application or reference to the ITAT, jurisdictional High Court or Supreme Court. The CBDT vide instruction no. 17/2019 dated 8 August 2019 for filing appeals by the income tax department before the ITAT, High Courts or Supreme Courts as follows:
Before the ITAT – Rs 50 lakh.
Before the High Court – Rs 1 crore.
Before the Supreme Court – Rs 2 crore.
The monetary limits are for the tax effect in a particular case. ‘Tax effect’ refers to the difference between the tax on the assessed income and tax on the income without the assessment adjustments. An Assessing Officer should determine the tax effect for each assessment year for a taxpayer. Though above are the monetary limits for filing appeals, one should check the merits of the case before submitting a request.
5. Procedure to file an appeal before the ITAT
An appeal to the ITAT should be in Form No. 36, filed in triplicate. The appeal submission should be in the form of a paper book consisting of:
Two copies of the order appealed against with one certified copy.
Two copies of the order of the Assessing Officer.
Two copies of Grounds of appeal earlier submitted before the first appellate authority, the CIT(A).
Two copies of the Statement of facts provided before the CIT(A).
Two copies of the assessment order in a case where the appeal is against a penalty order.
Two copies of the directions of the Joint Commissioner where the appeal is against an assessment order passed according to instructions of the Joint Commissioner.
Two copies of the original assessment order where the appeal is against a reassessment order passed under section 147.
A copy of the ITAT fee paid challan.
Two copies of the submissions, documents and papers, as submitted earlier during the income-tax proceedings or before the CIT(A).
Two copies of any other documents or facts the appellant wishes to provide.
The paper book should be in order and with due indexing. A person filing an appeal should submit the paper book at least a week in advance before the scheduled hearing and also furnish a copy to the respondent. The ITAT may condone the delay in filing a paper book depending on the facts and circumstances of a case.
6. Appeal filing fees
A person filing an appeal with the ITAT should pay the following appeal filing fee. The fee is dependent on the income assessed by the Assessing Officer. The income does not include the effect of the order passed by the CIT(A).
Total income assessed is less than Rs 1 lakh – Rs 500
Total income estimated is more than Rs 1 lakh but less than Rs 2 lakh – Rs 1,500
Total income assessed is more than Rs 2 lakh – 1% of the total income assessed not exceeding Rs 10,000
In case the appeal relates to any other matter, the filing fee is Rs 500. And, in the case of an application for stay of demand, the appeal filing fee is Rs 500. The ITAT fixes and notifies both the parties about the date and place for the hearing of the appeal. The respondent also receives a copy of the memorandum to the appeal along with the notice. The respondent may receive a notice of appeal before the memorandum.
7. Time available for filing an appeal
The time allowed to file an appeal is 60 days from the date of communication of the order, which is the subject matter of the appeal.
8. Filing memorandum of cross-objections
The respondent to an appeal should file a memorandum of cross-objections with the ITAT within 30 days of receiving notice from the ITAT. The form prescribed for filing cross-objections in Form No. 36A. There is no fee to file the cross-objections. The ITAT may accept a delayed submission of Form No. 36A depending on the facts and circumstances of the appeal.
9. Representation before the ITAT
The appellant and respondent can seek representation from an authorised person to appear for the hearing before the ITAT. Section 288 of the Income Tax Act, 1961 prescribes the persons who can act as an authorised representative. However, a taxpayer cannot seek representation in cases of a personal examination on oath.
10. Presentation of evidence
None of the parties is eligible to file additional evidence before the ITAT. In a case, the ITAT requires any document, affidavits or seeks to examine any witnesses, and the ITAT may allow for the production of documents or examination of persons or other evidence.
11. Orders by the ITAT
The bench of the ITAT hears the matter of the appeal and passes the order deciding the appeal. In a case where one or more of the parties fail to appear on the dates fixed for hearing, the ITAT can dispose of the appeal ex-parte. In case the other party/parties appear after the disposal and satisfy the ITAT with reasons for non-appearance, the ITAT may set aside its earlier ex-parte order. In general, a bench consisting of an accountant member and one judicial member passes the order of the ITAT. However, in specific cases of importance, the President of the ITAT may constitute a special bench consisting of three or more members, with at least one accountant member and one judicial member. In case the members differ in the decision on any point under consideration, the decision of the majority prevails. In case the members of the bench are divided in opinion, the President hears and decides the appeal.
Frequently Asked Questions (FAQs)
Q 1: What is e-Filing?
Ans: The process of electronically filing appeals and applications under Income Tax Act, 1961 and other enactments through the internet is known as e-Filing.
Q 2: Who can e-File?
Ans: An Assessee or Assessing Officer or any other person, who is entitled to file an appeal, cross objection or application before the Tribunal u/s. 253 of Income Tax Act, 1961 or relevant sections of other enactments, may file the same through e-Filing Portal.
Q 3: Is e-Filing a substitute for normal filing?
Ans: No. e-Filing is an enabling system. As of now, presentation of physical appeal is mandatory even after e-Filing. After e-Filing of an appeal, physical documents along with all enclosures shall be presented before the Tribunal within the time limit prescribed under relevant Act.
Q 4: What are the pre-requisites for e-Filing?
Ans: Permanent Account Number (PAN) / Tax Deduction Account Number (TAN), E-Mail ID and Mobile Number of the Appellant are the prerequisites for e-Filing.
Q 5. What type of cases can I file using E-Filing Portal?
Ans. Appeals, Cross Objections, Stay Applications or Miscellaneous Applications can be filed using E-Filing Portal.
Q 6: Can the appellant pay the Tribunal Fee through the E-Filing Portal?
Ans. No, there is no option for online payment in E-filing. Appellant is required only to enter the details of appeal fee paid in the e-Filing Portal.
Q 6: What will be the date of filing of appeal if I prefer to e-file an appeal?
Ans: The date on which you will present the physical appeal along with all enclosures before the Tribunal will be treated as date of filing of the appeal and limitation shall be calculated with reference to the said date.
Q 7: It is more than 60 days after I have received the order of the CIT(A). I want to file an appeal against the order. But I am already delayed. Can I use E-Filing Portal to file such appeal?
Ans: Yes. Even if you have delayed in filing an appeal before the Tribunal, you can still use E-Filing Portal to file such appeal. However, the date on which you will file the physical appeal along with all enclosures before the concerned Bench will be treated as date of filing of the appeal and limitation shall be calculated with reference to the said date.
Q 8: What is Appeal Sub Type?
Ans: Appeal Sub Type defines the category of appeal based on the section under which the appealed order was passed; and the section under which the original / base order of the assessing officer, as the case may be, was passed. Selection of proper Appeal Sub Type is necessary for identifying the documents to be uploaded and the fee payable.
Q 9: What to do if my appeal sub-type is not available in the list of Appeal Sub Types?
Q 10: What is Assessee Location? How is it different from City?
Ans: Location of the assessee and department is the city / town / village in which they are located, which can be same as City in the address. However, when address of communication is different from the assessee’s own address, then Location differs from City.
Q 11: What is the limit (no. of words) for typing in Grounds of Appeal column?
Ans: Maximum limit for each Ground of Appeal is 1000 characters. In case, your grounds of appeal cannot be given in the specified limit, you may simply write ‘Separately Enclosed’ in the ground of appeal and upload the manually prepared Grounds of Appeal as an enclosure.
Q 12: Is my memorandum of appeal automatically generated or should I prepare manually?
Ans: Memorandum of Appeal (Form 36), Cross Objection (Form 36A) and Stay Application under Income Tax Act, 1961 are automatically generated by the Portal. However, Miscellaneous application, being descriptive in nature, shall be manually prepared by the appellant. Further, memoranda of appeal under other enactments are to be prepared manually by the appellant.
Q 13: What are the documents needed to be uploaded at the time of Filing?
Ans: Different documents are to be uploaded for different type of appeals. An exhaustive list of documents to be uploaded can be seen here. All documents required to be filed along with an appeal should be scanned in Black & White PDF format in 150 DPI Resolution. Also ensure that the filenames of the document contain only ‘a-z’, ‘A-Z’, ‘0-9’, ‘_’, ‘.’ characters. File name with any other characters is not allowed. The Maximum file size allowed for an enclosure is 10 Mb.
Q 14: What to do if my appeal enclosure is more than 10 Mb in size?
Ans: It is possible that an enclosure is more than 10 Mb in size. In that case, after e-filing followed by physical submission of the appeal before the concerned Bench, the appellant shall send the scanned copy to the email address of the respective Bench along with complete details of the appeal and enclosure.
Q 15: I started e-Filing an appeal and at the time of uploading the documents my internet disconnected. Do I have to re-enter all the appeal form data when I come back to the Portal?
Ans: In case you were filing an appeal (and not a CO, SA or MA) and the same is without enclosures, E-Filing Portal will verify your identity particulars and let you complete the pending E-Filing. However, this is not possible in the case of a CO, SA or MA.
Q 16: I have e-Filed an appeal. In how many days do I have to submit the physical document before the respective Bench?
Ans: You have to submit the physical appeal along with all enclosures within the time limit prescribed under the relevant Act from the date of receipt of the order appealed against. Failing this, the appeal will be treated as time-barred.
Q 17: I have e-Filed an appeal, but not yet presented before the Tribunal. I found that some of the information I have given is wrong. What should I do?
Ans: You can simply ignore the already e-Filed appeal and proceed to file a fresh appeal. However, please ensure to submit the correctly e-Filed appeal before the Tribunal.
Q 18: I have e-Filed an appeal. However, I failed to upload some mandatory documents. What should I do?
Ans: You can upload the missing mandatory and optional documents using E-Filing Dashboard after physical submission of the e-Filed appeal before the respective Bench of the Tribunal. However, an enclosure already uploaded cannot be changed using the Dashboard.
Q 19: I have e-Filed an appeal. How can I know the status of my e-Filing?
Ans: Yes. Click on Know Your e-Filing status menu and input the PAN Number, E-Mail Id and Acknowledgement Number, and submit. System will verify the input details and show the e-Filing status.
Q 20: What to do if I forget my E-Filing Username?
Ans: Forgot Username? Please follow the link on the login page. Provide the details asked for and submit your request. An SMS mentioning your Username will be sent to your mobile number.
Q 21. I am filing an early hearing petition and the appeal was never posted earlier. What should be the Date of Hearing?
Ans: If your appeal has not been fixed before the Bench yet and if you wish to file an early hearing petition, you can leave the Date of Hearing column blank.
Q 22: My appeal was posted for hearing numerous times. What should be the Date of Hearing?
Ans: One has to give the date of next hearing of the appeal in which he is filing the E-Petition for consolidation. If no next date is given, mention last date of hearing.