- The Chamber of Tax Consultants

THE CHAMBER OF TAX CONSULTANTS
3, Rewa Chambers, Ground Floor, 31, New Marine Lines, Mumbai - 400 020
Tel.: 2200 1787 / 2209 0423 Fax: 2200 2455 E-mail: office@ctconline.org
Visit us at: Website: http://www.ctconline.org
STUDY CIRCLE MEETING
Thursday, 16th April, 2015
Conference Hall, Consultair Investments Pvt. Ltd. Churchgate.
-
Ajay Singh, Advocate
CHART FOR APPEALS UNDER CHAPTER XX
PARTICULARS
INCOME TAX
1.Orders Appealable
2.Time Limit of Filing
the Appeal.
CIT(A)
Sec. 246 to 251
Mentioned u/s.246A
Within 30 Days from
the date of Receipt of
Notice of Demand.
3.Prescribed Form No.
Form No. 35.
(As per Rule 45)
Aggrieved Assessee
4.Who can file Appeal
5.Fees Payable
Rs.250/- where the
Assessed Income is
Rs.1 lakh or less; more
than Rs.1 lakh but less
than Rs.2 lakhRs.500/- and more
than Rs.2 lakhRs.1000/-
TRIBUNAL
Sec. 252 to 255
Mentioned u/s. 253.
Within 60 Days from
the date of Service of
CIT(A)'s order.
HIGH COURT
Sec. 260A & 260B
Mentioned U/s. 260A
Within 120 days from
the date of
Communication of
Appellate Tribunal
order.
Form No. 36.
As per High Court
(As per Rule 47(1))
original side Rules.
Aggrieved Assessee or Aggrieved Assessee or
Commissioner.
Commissioner.
Rs.500/- where the
Ad-volarem fee
Income assessed is
leviable on the amount
Rs.1 lakh or less,
in dispute, i.e. the
Rs.1,500/- where the
difference between the
income assessed is
amount of tax actually
more than Rs.1 lakh
assessed and the
but less than Rs.2 lakh amount of tax admitted
and 1% of assessed
by the assessee as
income, subject fee
payable by him,
maximum of
subject to a maximum
Rs.10,000/of Rs.10,000/- (only
where the income
by assessee). {As per
assessed income is
Article 16A to
more
Schedule I of the
than 2 lakhs.
Bombay Court Fees
Act}.
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6.Documents to be
Filed.
7. Documents to be
Submitted in :
8.Place of Filing.
Form No.35, Grounds
of Appeal, Statement
of Facts, Copy of
Order against which
appeal is preferred,
Notice of Demand and
original challan of
filing fees.
Form No.36, Grounds
of Appeal, Copy of
Order against which
appeal is preferred, &
Documents filed
before the CIT(A)
as referred in the
column.
Memo of Appeal;
Statement of facts,
orders of the lower
authorities and
documents relied upon
the Tribunal and lower
authorities.
Duplicate.
Triplicate.
CIT(A) as mentioned
in the Notice of
Demand.
Registrar of the
Appellate Tribunal.
Duplicate. One copy to
be served on
Respondent.
Respective High
Court.
Cross Objection.
1.Prescribed Form No.
2.Time Limit for filing
the Cross Objection.
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3.Fees Payable.
Stay Application
1. Fees Payable
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2. Documents to be
filed.
---
Miscellaneous
Application
1) Fees Payable
2) Documents to be
filed
---
---
---
Form No. 36 A.
(As per Rule 47(1))
Within 30 days of the
receipt of the notice of
appeal filed by other
party.
No Fees Payable.
Rs.500/(w.e.f.1/10/1998) [per
application as per the
decision of the
Tribunal]
Stay Petition,
Rejection
order for stay by CIT
&
Assessing Officer
Affidavit, orders of lower
authorities &
documents
furnished to them.
Rs.50/(w.e.f. 1/10/98)
Rule 22 of order XLI
of CPC
Within 30 days form
date of service of the
appeal.
Miscellaneous
Application Petition,
order of the Tribunal,
Affidavit
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-----
---
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APPELLATE PROCEEDINGS
Shri Ajay R. Singh
Advocate
Email: ajaysingh.legal@gmail.com
INTRODUCTION
Article 265 of the Constitution of India, provides as under : “Taxes not to be imposed save by
authority of law – No tax shall be levied or collected except by authority of law”.
Representation before the Assessing officer and first appellate authorities are foundation to the
appeal. For making a good representation we should know the facts, law and procedure.
Assessment as it is understood is a process of determination of any liability under the provision
of the tax laws (sec 2(8)).
Right of Appeal is a creature of Statute. A person has no inherent right of appeal and hence, it
cannot come under the category of fundamental rights. No Appeal lies unless it is provided by
the statute. (CIT vs. Garware Nylons Ltd. 212 ITR 242 – Bom). An appeal is a continuation
of assessment proceedings. Assessment proceedings complete when appeal against order of
assessment is decided by Tribunal CIT vs. Mayur Foundation (2005) 274 ITR 562(Guj.)
A.
FIRST APPEAL: Section 246 confers the right to appeal before the CIT(A) in respect
of orders specified u/s. 246A of the Income-tax Act, 1961. The relevant Rules are
provided in Rules 45 to 47 of Income Tax Rules, 1962.
1.
WHO CAN FILE APPEAL? - AGREED ASSESSMENT
1.1
"Every Assessee aggrieved" by any of the orders mentioned in Section 246 of the I.T.
Act, 1961 has a right to prefer an appeal. In Rameshchandra & Co. v. CIT 168 ITR 375
(380) (Bom), it has been held that where an assessee has made a statement on facts,
there can be no grievance if he is taxed on the basis of that statement. As there is no
grievance, there can be no appeal. When an Assessing Officer states in the Order that the
Assessee agreed for addition, he cannot file an
appeal unless
he challenges the
observation of the Assessing Officer by filing Affidavit - Western India Automobiles v.
CIT 112 ITR 1048 (Bom).
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1.2
Assessee should make application u/s.154 of the Act, challenging the observation of the
Assessing Officer and should also file an appeal specifically urging that he has not agreed for
additions and the same should be supported by an Affidavit.
1.3
It has been held by High Courts that even a third party has a right of appeal if, as a result
of an order he is saddled with a liability for any tax or other sum – (See Section 2(7) of
the Act)
Kikabhai Abdulali Vs. ITAT Bombay 32 ITR 762 (Bom); Benoy Kurian vs. Agrl. ITO
234 ITR 617 (Ker); CIT v. N. Ch. R. Row & Co. 144 ITR 557 (Cal), CIT vs. Ambala
Flour Mills. (1970) 78 ITR 256 (SC).
A. A person who is beneficially entitled to the income in respect of which he
is assessee through a trustee or agent or court of wards.
Shrimant Govindrao Narayanrao Ghorpode vs. CIT (1963) 48 ITR
54 (Bom), Inder Singh Gill vs. CIT (1963) 47 ITR 284 (Bom)
B.
Where the assessee is dead, through legal representative;
Rajah Manyam Meenakshamma vs. CIT (1956) 30 ITR 286 (AP)
C.
A coparcener, where the assessee has claimed to be a HUF:
Chandumal Pannalal vs. CIT (1965) 58 ITR 711 (Cal.)
D.
Levy of interest u/s. 234B/234C is appealable on the ground that assessee
denies his
liability to be assessed.
Jalgaon Dist. Central Co-op Bank Ltd. Vs. ITO [70 ITD 290 (Pune)]
(Central Province Manganese Ore Co. 160 ITR 961 (SC)
E.
Certificate granted u/s 197 ? Section 248 provides for appeal by a person denying liability
to deduct tax i.e. for orders u/s 195.
The Bombay High Court held that no appeal lies from the order u/s 197 u/s 248 – CIT vs.
Garware Nylons Ltd. 212 ITR 242 (Bom)
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F.
Protective assessment? In following cases, it has been held that even against Protective
Assessment, Appeal can be filed. 54 ITD 471 (Delhi) (SB)
E.
Appeal can be filed by the director of erstwhile company, whose name was struck–off the
register by the Registrar of company.(S. 140,246 ,Companies Act 1956 , S. 560).
Ajay Ispat (P) Ltd v. ITO ( 2012)136 ITD 145(Ahd.)(Trib.)
G.
After revision u/s. 264 – Appeal not maintainable u/s. 246A.
Orissa Rural Hsg Development Corporation Ltd (2012) 343 ITR 316 (Orissa)
1.4
The Hon’ble Bombay High Court in case of Nirmala L. Mehta vs. A. Balasubramanin
CIT (2004) 269 ITR 1 (Bom) held that there cannot be any estoppel against statute.
Article 265 of the Constitution of India provides that no tax shall be levied or collected
except by authority of law. [Also see Balmukund Acharya 310 ITR 310 (Bom)]. Same
income cannot be taxed twice R Natarajan (2012) 135 ITD 55 (TM )(Chennai)
1.5
Order Giving effect to Appellate order : Appealable :
An order giving effect to the appellate order bears the same characteristic as the original
order against which appeal was filed.
a)
CIT vs. Industrial Machinery Manufacturing P. Ltd.
(2006) 282 ITR 595 (Guj.)
b)
Bakelite Hylam Ltd. vs. CIT (1988)171 ITR 344(AP).
c)
Where the Department denies its liability to pay interest on refund of self assessment tax,
the issue is appealable : Sec. 244A
Dy. CIT vs. BSES Ltd. (2008) 113 TTJ 227 (Mum)(para 19.6).
d)
Order giving effect to revision order u/s. 264 – Appealable
Jasbir Singh v/s. ITO (2012) 76 DTR 36 (Asr). Trib.
e)
Gausia Cold Storage Pvt. Ltd vs. ACIT (ITAT Mumbai)
S. 264: ITAT entertains appeal against order passed by CIT u/s 264
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2.
PROCEDURE : GROUNDS OF APPEAL & STATEMENT OF FACTS:
2.1
An appeal should be filed within a period of 30 days of the service of the Assessment
order alongwith notice of demand. The same should be concise without any
argumentative or narrative. Language should not be very harsh. The grounds should
highlight the main controversy in issue. The grounds should not be vague, general or too
lengthy. Specific ground to be taken for each and every issues involved.
2.2
The Statement of Facts should be filed before the Commissioner (Appeals) wherein facts
can be narrate. It is advisable to file elaborate statement of facts covering all issues and
wherever possible, alongwith details filed before Assessing Officer and the case laws.
Filing of detailed statement of facts, along with supporting case laws will help the
Assessee, especially when appeals are disposed off by the first appellate authority exparte. If certain factual errors are there in the order the same must be raised in the
grounds of appeal and statement of facts.
2.3
DELAY IN FILING APPEAL: An application for condonation of delay alongwith
affidavit stating the reasons for delay should be filed alongwith the appeal. The Hon’ble
Calcutta High Court in Charki Mica Mining Co. Ltd. vs. CIT (1978) 111 ITR 193 has
held that the limitation period commences from the date of receipt of notice of demand
by the Assessee and not from the date of receipt of Assessment order.
Affidavit
should be properly drafted and notarized. (Kunal Surana vs. ITO (ITAT Mumbai)
May 28th, 2013.)
2.4
In Collector of Land Acquisition v. Mrs. Katiji & Others 167 ITR 471 (SC) the
Hon'ble Supreme Court has held that the Courts should have pragmatic & liberal
approach
in admitting the appeal beyond the period
of limitation.
Also see N.
Balkrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123, State of Nagaland vs. Lipuk
A.O. 2005 (183) E.L.T. 337 (SC),
Earthmetal Electricals (P.) Ltd. vs. ITO (2005) 4
SOT 484 (Mum) and Bombay Mercantile Co-op. Bank vs. CBDT (2010) 45 DTR 377
(Bom).
2.5
Legal Principle culled out from various decision on condonation of delay are.
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a.
The expression ‘sufficient cause’ must receive a liberal construction so as to
advance substantial justice and generally delays in preferring the appeals are
required to be condoned in interest of justice.
b.
The primary function of any quasi-judicial body is furtherance of
administration of substantial justice.
c.
Pragmatic justice oriented approach is required and not the technical
detection of explanation of every days delay.
d.
Length of delay is immaterial.
e.
A litigation does not stand to benefit by resorting to delay, therefore a justice
oriented approach is required by courts.
f.
Since explanation of assessee did not smack mala fide or was not put forth as
a dilatory strategy, delay in filing appeal was to be condoned.
g.
In every case of delay there can be same lapses on the part of the litigant
concerned, but that alone is not enough to shut the door against him.
h.
Refusing to condone delay can result in a meritorious matter being thrown
out at the very threshold and cause of justice being defeated.
i.
In matters of condonation of delay a highly pedantic approach should be
eschewed and a justice oriented approach should be adopted and a party
should not be made to suffer on account of technicalities.
3.
PAYMENT OF TAX MANDATORY BEFORE FILING APPEAL.
3.1
Section 249(4) provides that no appeal shall be entertained unless at the time of filing the
appeal the assessee has paid the taxes due on the returned income or where no return is
filed, an amount equal to the amount of advance tax which was payable by him. The tax
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due does not include interest element. CIT vs. Manoj Kumar Beriwal (2009) 316 ITR
218 (Bom);
3.2
Case Laws: Once the assessee has complied with the provisions Appeal be heard on
merit:
i)
Subbiah Nadur & Sons vs. ACIT 84 ITD 55 (Chennai)
ii)
Mr. Purshottam G. Budhwani vs. ACIT
ITA No. 354/M/2009, dt. 21/1/2010, Bench “C”
4.
iii)
Anant R. Thakore vs. ACIT (2006) 5 SOT 298 (Mum)
v)
Bhumiraj Constructions v. Addl. CIT (2011) 131 ITD 406 (Mum.)(Trib.)
CAN AN APPEAL BE SIGNED BY AN ADVOCATE
/ CHARTERED
ACCOUNTANT / AUTHORISED REPRESENTATIVE
4.1
As per Rule 45 of the Income Tax Rules, 1961, the form of appeal i.e. Form No. 35, the
Grounds of Appeal & the form of Verification appended thereto shall be signed &
verified by the person who is authorised to sign the return of income under section 140
of the I.T. Act, 1961. Thus it can be inferred that only in the case of an individual or a
company which is not resident in India, the return can be signed by a person who holds
a valid power of attorney, which shall be attached to the return.
4.2
In the following cases, it has been held that an appeal signed by an Advocate/C.A. is
valid -Mrs. Leezo Salidan v. CIT 16 TTJ 243 (Bom) Pyrkashim Stores v. CIT 9 ITD 93
(Bom) Hariledge v. ITO 29 Taxman 122 (Bom) (Tribunal) RajendraKumar Maneklal
Sheth (HUF) v. CIT 213 ITR 715 (Guj).Yusuf Husain v/s. ITO dt 5th Feb 2013( Mum)(
Trib).
4.3
Defect in Appeal:
Defect in Appeal can be rectified by an amendment. The Assessee should be given
an opportunity to rectify the defect:
a)
Malani Trading Co. vs. CIT (2001) 252 ITR 670 (Bom)
b)
BDA Ltd. vs. ITO (TDS) (2006) 281 ITR 99 (Bom) (Aurangabad Bench)
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c)
CIT vs. Calcutta Discount (1973) 91 ITR 8 (SC)
d)
Prime Securities Ltd. vs. ACIT (2009) 317 ITR 27 (Bom)
5.
Hearing: Assessee should file written submission and paper book at time of hearing.
5.1
The CIT(A) has power to make such further inquiry as he thinks fit or may direct the
A.O. to make further inquiry and report to him. Assessee is entitled to reply to the
remand report.
5.2
The CIT(A) has to pass a speaking order dealing with each grounds of appeals. The
CIT(A) should pass the order on merits even though heard exparte / or assessee did not
appear. -
5.3
CIT vs. Chennaippa 74 ITR 41 (SC).
The CIT(A) cannot apply Multiplan (India) Ltd. 38 ITD 320, decision and dismiss the
assessees appeal exparte for non appearance. Gujarat Themis Biosyn ltd v/s. Jt CIT
74 ITD 339 (Ahd).
6.
ADDITIONAL EVIDENCE
If the assessee is been prevented by good, sufficient or reasonable cause or adequate time
is not allowed such fresh evidence can be placed before the appellate authority by making
a Application U/R. 46A. Additional evidence has to be filed in duplicate. Ensure that
CIT(A) serves one copy to the Assessing officer and obtains a remand report.
The CIT(A) has to give a copy of remand report and further an opportunity to reply to the
remand report.If the assessee is been prevented by good, sufficient or reasonable cause
or adequate time is not allowed such fresh evidence can be placed before the appellate
authority by making a Application U/R. 46A.
-
Effect of Rule 46A – Opportunity to A.O. to examine document and evidence. Rule
embodies provision of natural justice: CIT vs. Shree Kangra Steel Pvt. Ltd. (2010) 320
ITR 691 (HP)
6.1
The Commissioner (Appeals) would not be justified in rejecting additional evidence
produced before him – Smt. Prabhavati S. Shah v. CIT 231 ITR 1 (Bom); Dwarika
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Prasad v. ITO 63 ITD 1 (Patna)(TM). g)
Manish Build Well Pvt Ltd. (2012) 204
Taxman 106 (Delhi)HC ( Considering Sec250(4) of the Act)
6.2
Under Rule 46A(4) the CIT(A) on its own discretion can ask the assessee to produce
documents or evidence. Additional evidence gathered by the CIT(A) on his own is not
required to be produced before A.O. for his comments.
a)
ITO vs. Indl. Roadways (2008) 305 ITR 219 (Mum(AT).
b)
ACIT vs. Prime Telesystems Ltd. (2007) 11 SOT 361 (Del.)
c)
Dy. CIT vs. Thoresen Chartery Singapore (2009) 118 ITD 416 (Mum)
e)
CIT vs. K. Ravindranathan Nair (2004) 265 ITR 217 (Ker.)
f)
6.3
Jai Hind Co operative Sugar Mills Ltd (2011) 335 ITR 43 (P&H)
Permission to bring additional document can be granted in exercise of discretion of Court
to achieve ends of justice. (Smt. Shantibai K. Vardhan & Ors. Vs. Ms. Meera G. Patel
& Anr. AIR 2009 (NOC) 904 (Mum)
Filing of Translated copy of document in Court is not additional evidence. (Prahlad
Singh vs. Suraj Mal & Ors AIR 2009 Raj. 53)
7.
RAISING ADDITIONAL GROUNDS
7.1
Sub-section 5 of Section 250 gives power to the Commissioner (A) to allow the
appellant to raise additional ground if he is satisfied that the omission of that ground
was not wilful or unreasonable.
a)
Jute Corp. of India Ltd. vs. CIT 187 ITR 688 (SC) (FB)
b)
Heinrichde Frics GMBH vs. Jt. CIT 281 ITR 18 (Mum)(AT)
8.
JURISDICTION POINT.
8.1
The Assessee can raise the jurisdiction point at any time. - Union of India v. Rai Singh
Dal Singh 88 ITR 200 (SC), CIT v. Dumravan Cold Storage & Refrigerators Services
97 ITR 137 (Pat), The Assessee can raise the jurisdictional point before the Tribunal
also inrespect of reassessment proceedings. As it is a question of law which goes to the
root of the matter. Inventors Industrial Corporation Ltd. vs. CIT 194 ITR 548 (Bom).
Invalid jurisdiction cannot be corrected by Sec. 292B [Saraf Gramodyog Sanshtan 108
ITD 115 (Agr.)] . Technical defect in notice or proceedings would not render proceedings
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invalid. However, jurisdictional defect cannot be cured - CIT v. Norton Motors 275
ITR 595
9.
MAKING A CLAIM FOR THE FIRST TIME BEFORE APPELLATE
AUTHORITY
9.1
If there was evidence or material on record, then only a claim made for the first time be
entertained by the Appellate Authority. CIT v. Western Rolling Mills Pvt. Ltd. 154 ITR
54 (Bom).
9.2
The Board have issued instructions from time to time in regard to the attitude which the
Officers of the Department should adopt in dealing with assessees in matters
affecting their interests and convenience. Circular
No.14(XL-35)
of
1955,
C.No.13(207)-IT/50, dated 11th April, 1955, states that the Officers of the Department
must not take advantage of ignorance of an assessee as to his rights.
9.3
However the decision of S.C. in the case Goetze (India) Ltd vs. CIT 284 ITR 323 (SC)
has held that it was open to the assessee to raise new points of law before the Tribunal.
The Tribunal has such powers u/s. 254 of the Act.
9.4.
A.O. is bound to assess the correct income and for this purpose the Assessing officer may
grant relief’s / refund sou motu or can do so on being pointed out by the assessee in the
case of assessment proceedings for which assessee has not filed a revised return.
Case Law After Considering Goetze (India) Ltd. (Supra)
a)
CIT v. Pruthvi Brokers & Shareholders Pvt. Ltd (2012) 208 Taxman 498/252 CTR
151(Bom.).
9.5
However, the A.O. cannot entertain a claim for deduction otherwise than by filing a
revise return.
9.6
In case where assessment is not pending and the time available for filing a revised return
is also expired, the only remedy is to seek extension of time u/s. 119(2) from the Board
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for filing a delayed return in case of genuine hardship. (See Bombay Mercantile Co-op
Bank vs. CBDT (2010) 45 DTR 377 (Bom).
The assessee can also file rectification application u/s. 154 on facts of the case or make a
application to CIT u/s 264.
10.
POWERS OF THE CIT(A)
10.1
Power to Stay the Recovery Proceedings

In following cases it has been held that the CIT(A) has the power to Stay the Recovery
Proceedings. City and Industrial Development Corporation of Maharashtra Ltd v.
ACIT (2012) 343 ITR 102 (Bom.), Balaji Universal Tradelink (P) Ltd. v. UOI (2012)
76 DTR 132 (Bom.). Haresh Ravji Majithiya v/s.ACIT (2014) 227 Taxman 211(Mag)
BOM. HC.; Nikhil Kelkar v/s. ITO (2014) 225 Taxman 196 (Mag) Bom. HC.
The Hon’ble S.C. in the case of ITO vs. M.K. Mohammed Kunhi (1969) 71 ITR 815
(SC) held that power to grant stay is incidental or ancillary to its appellate jurisdiction.
In Employees’ Provident Fund Organization vs. ACIT (ITAT Delhi).S. 253(1)(a): An
appeal can be filed before the Tribunal against an order of the CIT(A) rejecting the stay
application
The guidelines to the Income Tax authorities while deciding stay application is
provided by Bombay High Court in.
-
KEC International Ltd. vs. B.R. Balakrishnan & Ors.
(2001) 251 ITR 158 (160) (Bom)
-
Mahindra & Mahindra Ltd. vs. UOI 1992 (59) ELT 505 Bom.
-
Strictures were passed against dept for disposing stay application without proper
reasons. Paramount Health Services v/s. ACIT
(2010) 37 DTR 377 (Bom) ; SRAv/s. DIT (E)(2014)112 DTR 209 (Bom)(HC).
10.2
Power of Enhancement
The CIT(A) has power to confirm, reduce, enhance or annual the assessment; confirm or
cancel or vary or enhance or to reduce the penalty and may pass such orders in the appeal
as he thinks fit.. However the CIT(A) should give reasonable opportunity of hearing to
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the assessee. Notice is mandatory, Infrastructure Development Finance Co.ltd. 213
Taxman 28 Mag. (Mad) (HC).
The filing of an appeal may lead to grave consequences of enhancement of assessment.
 The Explanation provides that CIT(A) may consider and decide any matter arising out of
the proceedings, notwithstanding that such matter was not raised before the CIT(A).

Thus CIT(A) powers are very wide. The scope of his powers is conterminous with that of
AO. He can do what AO can do and can also direct him to do what he has failed to do.
[CIT Vs. Kanpur Coal Syndicate 53 ITR 225(SC)]
 However he has no jurisdiction to assess a source of income which is not disclosed either
in the ROI or in the assessment order. Thus it is not open to him to travel outside the
record for finding out new source of income. [CIT Vs. Rai Bahadur Hardutroy Motilal
Chamaria - 66 ITR 443(SC)]
In CIT Vs. Nirbheram Daluram [224 ITR 610] the Supreme Court held that the CIT(A)
can make addition in respect of new source of income if it is not considered by AO.
 No power to consider validity of Act or Rules [CIT Vs. Straw Products Ltd. 60 ITR 156
(SC)]
 "Any matter arising out of the proceedings“.
It extends to all matters arising out of the proceedings which might have been considered
and determined by the AO in the course of the assessment although such matters might
not have been raised by the assessee. The competence of the appellate authority ranges
over the whole assessment proceedings without restrictions on him. His jurisdiction is
therefore, not confirmed to the subject matter of the appeal but extends to the subject
matter of assessment. Ugar Sagar Works Ltd. Vs./ CIT -141 ITR 326 (Bom). Issues
which are subject matter of revision u/s. 264 cannot be enhanced by commissioner
appeals, Hindustan Colas Ltd. (2013) 140 ITD 277 (Mum).
 Commissioner (Appeals) has power to consider such items which was considered by
the Assessing Officer and enhance assessment.
Items considered by the AO but no addition made. It was held that commissioner appeal
has power to consider such items and enhance assessment. Accordingly addition made by
the Commissioner (Appeals), on the basis of analyzing the documents which was
confirmed by the Tribunal was held to be proper. (Block Period 1990‐91 to 2001‐02)
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Gurinder Mohan Singh Nindrajog v. CIT (2012) 348 ITR 170 (Delhi)(High Court);
Enhancement – Income from same source of income - Held valid.
Qualcomm Incorporated v/s. ADIT 85 DTR 156 (Del)(URO)
10.3
The CIT(A) powers u/s. 251 are vide enough to include the power to examine all matters
covered by the assessment order and to correct the assessment. The Powers of CIT(A)
are conterminous with those of the Assessing Officer.
166 ITR 494 (MP) Indermal Natwarlal vs. CIT
206 ITR 574 (Guj) CIT vs. Ahmedabad Crucible Co.
131 ITR 451 (SC) Kapoorchand Shrimal vs. CIT
305 ITR 310 (Chennai) AT Ansaldo Energia SPA vs. Astt. DIT
(2012) 138 ITD 355 (Mum.)(Trib.) Ratan J. Batliboi v. ACIT
10.4
However the jurisdiction of the appellate authority u/s. 251 is strictly confined to the
Assessment order of the particular year under appeal as held in ITO vs. Murlidahr
Bhagwan Das 52 ITR 335 (SC),
- Power of CIT (A) – Finding – Direction – Only in respect of year under appeal. Sun
Metal Factory I Pvt Ltd v/s. ACIT (2010) 124 ITD 14 (Chennai).
- Power of CIT Appeal on remand by ITAT on specific issue – CIT Appeal in second
round cannot raise a new plea. Ritz Theatre v/s. ITO 194 Taxman 544 Del.
- Matter remanded by ITAT with set out parameters, CIT (A) cannot examine the entire
nature of payment . White line Chemicals (2012) 216 Taxman 242 (Guj)(HC)
B.
PROCEEDINGS BEFORE THE I.T.A.T
1
INTRODUCTION
The Income Appellate Tribunal (in short the “Tribunal”) was set up on 25th January,
1941, as an independent quasi-judicial body functioning under the Union Ministry of
Law and Justice. “The Supreme Court in Ajay Gandhi & Anr. Vs. B. Singh & Ors.
(2004) 186 CTR (SC) 506 : (2004) 265 ITR 451 (SC) observed : “The Tribunal exercises
judicial functions and has the trappings of a Court”.
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ITAT v/s. V. K Agarwal 235 ITR 175 (SC)- Contempt of court Act.
In the case of J.C. Augustine vs. ACIT (2009) 312 ITR 60(AT)(Coch) the Cochin Bench
had observed that ITAT was not an income tax authority for the purpose of Income tax
Act.
The ITAT does not form part of the list of hierarchy of the Income-tax authorities as per
section 116 as it
is not an Income-tax authority. The ITAT, like the Income-tax
department, does not function under the Ministry of Finance but it is constituted and
functions under the Ministry of Law and Judiciary, Government of India. The powers of
Tribunal are similar to the powers of an appellate court under the code of civil
procedure. The Tribunal is considered to be the final fact finding body and its
decisions on facts of the case are, ordinarily, not liable to be questioned before the
High Court.
1.
WHO CAN FILE AN APPEAL AND PRESENTED TO WHOM?
1.1
As per Section 253, any Assessee aggrieved by the order of the Commissioner (A) may
prefer an appeal to the Appellate Tribunal. Similarly, the Commissioner may object to the
order of the Commissioner (A) & direct the Assessing Officer to file an appeal to the
Appellate Tribunal.
It has been held by High Courts that even a third party has a right of appeal if, as a result
of an order passed in an appeal by the first appellate authority before whom he is not a
party, he is saddled with a liability for any tax or other sum – (Discussed above)
2.
TIME LIMIT FOR PREFERRING APPEAL
2.1
An appeal should be filed within Sixty days of the receipt of the order of the
Commissioner (A) in the prescribed Form No. 36.
2.2
As per order No. 1 of 1973 dated 10/7/1973, [F. No. F-161-AD(AT)/70 – 90 ITR (St.)
25], the Registrar of the Income Tax Appellate Tribunal has authorised Assistant
Registrar of different places to receive appeals. However, if it is last day of presenting
15 | P a g e
Appeal, the same can be presented at Residence of the Registrar or even residence of the
Members or wherever they may be.
2.3
According to Rule 6(2) of the ITAT Rules, 1963, if the appeal is being sent through post
then in such cases it must be through Registered post addressed to the Registrar or other
authorised officer of the Tribunal. However, the most important point to be borne in mind
is that it shall be deemed to have been presented on the day on which it is received in the
office of the Tribunal. Any delay in transmission by post may not be excluded in
computing the period of limitation. This is so because under the general law, the postal
authorities are not considered as agents of the addressee but they are agents of the sender.
[F. N. Roy vs. Collector of Customs AIR 1957 (SC) 648].
In case of delay in filing the appeal, on Application for condonation of delay alongwith
the affidavit of the assessee and supporting document must be filed alongwith the appeal.
The assessee should disclose sufficient and reasonable cause for the delay.
3.
GROUNDS OF APPEAL & STATEMENT OF FACTS.
3.1
As per Rule 8 of the Appellate Tribunal Rules, every memorandum of appeal shall be
written in English. The same should be concise without any argument ot or narrative.
3.2
The Statement of Facts should be filed before the Commissioner (A). It is very vital
for the assessees to present the statement of facts in such a manner so as to bring out
clearly the steps in the assessment/penalty proceedings leading to the order under
challenge. There is no requirement of filing of Statement of Facts before the
Appellate Tribunal.
1.
Jagjivandas Nandlal vs. ITAT (Bombay High Court)
ITAT President requested to make it compulsory for assessees to amend Form
36 for change of address instead of intimating vide letter
3
CROSS OBJECTIONS.
3.1
If the assessee or the Assessing Officer prefers an appeal to the Tribunal u/s.253(1) or
(2), as the case may be, and the appeal is not rejected under rule 12 of the ITAT Rules,
16 | P a g e
1963, a notice is given by the Tribunal to the respondent informing him of the fact of
such filing, also enclosing the memorandum and grounds of appeal. The respondent can
file, u/s.253(4), a memorandum of cross objections in Form No.36A, within 30 days from
the date of receipt of such notice, against any part of the order of the first appellate
authority deciding any issue against him. In case of delay Application for Condonation of
delay should be filed. Delay is condonable in belated cross objection.
Vareli Textile P. Ind. 154 Taxman 33 (Guj.)
Sterlite Ind India ltd v/s. Addl CIT 2006 102 TTJ 53 (Mum)
Dy CIT v/s. Harshad S Mehta (2007) 17 SOT 504
The cross objection filed is registered and numbered. It should be heard alongwith the
original appeal.Cross objection to be considered as an appeal and should be disposed of.
TATA SPONGE V/S. CIT 2008 307 ITR 441 orissa.
ITO vs. Jasjit Singh (ITAT Delhi)
S. 253: In a cross-objection, a new legal issue can be raised
for the first time before the ITAT.There is no difference between an
appeal and a cross-objection. In a cross-objection, a legal issue which
has not been raised before the lower authorities can be raised. The
C.O. need not be confined to the points taken by the opposite party in
the main appeal
4
In absence of Cross appeal the Respondent still has Right to agitate its point via R.
27.of ITAT
Dahod Suhakar Kharid 282 ITR 321
(Guj.)
The respondent is not required to pay any filing fees as per rule 22 and the Tribunal shall
dispose off such memorandum of cross objections as if it were an appeal. Rule 27 of the
ITAT Rules, 1963, empowers the respondent to the order appealed against on any of
the grounds decided against him, though he may not have appealed or filed a cross
objection. Vahivatdars of Ambaji Temple vs. CIT 58 ITR 675, 684 (Guj).
Few Case Laws
Dy. CIT vs. Turquoise Invest. 299 ITR 143 (MP)
B.R. Bamsi vs. CIT (1972) 83 ITR 223 Bom (245 – 246)
17 | P a g e
Power of the Appellate Tribunal are similar to the powers of an appellate court under the
CPC. The Respondent in an appeal is entitled to support the decree which is in his
favour on any grounds which are available to him, even though the decision of the lower
court in his favour may not have been based on these grounds.
Assam Co. (India) Ltd. vs. CIT (2002) 256 ITR 423 (Gauh.) (Pg. 439-440)
It is permissible on the part of the Tribunal to entertain a ground beyond those
incorporated in the Memorandum of appeal though the party urging the said ground had
neither appealed before it nor had filed a cross – objection in the appeal filed by the other
party. The evidentiary facts in support of the new ground must be available on record.
Dy. CIT vs. Bifora Watch Co. 94 ITD 203 (Mum) (TM) Pg. 211 Para 21
The assessee can raise additional ground u/R 27 though neither appeal nor cross objection
is filed by the assessee.
Smt. Narasamma vs. Asst. CIT (2002) 75 TTJ 298 (Bang.) (Para 4 Pg. 302)
The Tribunal has the discretion to allow any party to an appeal may be the appellant or
the respondent to raise a new point or new contention provided two conditions are
satisfied:
a) No new facts are required to be brought on record for disposing of such new
point.
b) An opportunity is given to the other side to meet the point.
5.
FEES PAYABLE
5.1.1 Before the amendment to Sec. 253(6) w.e.f. 1-10-1998, appeal made on or after 1-6-1992
were to be accompanied by a fee of Rs.250/- in case where the total income assessed
by the assessing officer is one lakh rupees or less and by a fee of Rs.1500/- where
total income assessed is more than one lakh rupees.
5.1.2 However, w.e.f. 1-10-1998, every memorandum of appeal shall be accompanied by a fee
of-
18 | P a g e
(a)
Rs.500/- where the Assessed Income is Rs.1 lakh or less;
(b)
Rs.1,500/- where the Assessed Income is more than Rs.1 lakh but less than Rs.2
lakh;
(c)
1% of the Assessed Income, subject to a maximum of Rs.10,000/- where the
Assessed Income is more than Rs.2 lakhs; and
(d)
With effect from 1-6-1999, where the subject matter of an appeal relates to any
matter, other than those specified in clauses (a), (b) and (c) above, then the fees
payable would be Rs.500/-.
Note:
A.
In case of Appeal against levy of penalty u/s. 271(1)(c) appeal fee is payable Rs.
500/Dr . Ajith kumar Pandey v/s ITAT 310 ITR 195(Pat)
(After referring Bidyut Kumar Seth vs. ITO 92 ITD 148 (Kol.)(SB)
B.
the term ‘assessed income’ for this purpose, it seems, means assessed as
per the original order, not as per the revised income recomputed in the
order giving effect to the appellate order.
C.
Total income is loss it will be caluse (d) of sub-section (6) of Sec. 253 –
Rs. 500 Gilbs Computer (2009) 317 ITR 159 (Bom)
D.
In appeal against Revision order u/s.263, fees Rs.500/- Kiranjit Singh
(2006) 101 TTJ 424 (Asr.) ;Chromatic India ltd v/s. ITO ; ITA no.
3486/M/01 bench D dt12-2-02
E.
Appeal dismissed on ground of limitation – Fees Rs. 500
Rajkamal Polymers Pvt. Ltd. vs. CIT 291 ITR 314(Ker.)
F.
No appeal fee is payable by the department in a departmental appeal. No
fee is payable either by an assessee or the department on a cross-objection
filed by them.
19 | P a g e
6.
Monetary Limits for filing appeal:
Tax effect
CBDT Instruction No. 5/2014 dated 10.07.2014 prescribing Monetary limits for filing
appeal by the Department.
Tax effect
a)
Appeal before ITAT
Rs.4 lacs
b)
Appeal before High Court
Rs. 10 lacs
c)
Appeal before the S.C.
Rs. 25 lacs
(Also see Instruction No. 5/2008, dated 15/5/2008 wherein it has been held that for the
purpose of tax effect interest will not be included. Similarly in loss cases notional tax
effect should be taken into account. In cases of penalty order the tax effect will mean
quantum of penalty.)
In cases involving substantial question of law of importance’s as well as cases where the
same question of law will be repeatedly arise it should be considered separately on
merits. CIT vs. Surya Herbal Ltd (Supreme Court): CBDT’s low tax effect circular not
applicable to matters having “cascading effect”
Decisions :
CBDT instruction binding on Revenue
(2009) 222 CTR 328 (Bom) CIT vs. Polycott Corporation
(2007) 294 ITR 419 (Bom) CIT v/s.Arvind Nilkanth kedar
276 ITR 519 (Bom) CIT vs. Pithwa Engg. Works
(2002) 254 ITR 565 (Bom) CIT vs. Camo Colour Co.
The objective of the CBDT instruction is squarely to reduce avoidable tax litigation.
7.
Power of Stay:
7.1.1 In Stay Petition, a fee of Rs.500/- is payable. However, if single application for stay of
recovery is made to ITAT for number of assessment years, then the filing fees payable
u/s.253(7) would be Rs.500/- only and not Rs.500/- per assessment year – Shri
20 | P a g e
Chiranjilal S. Goenka (Deceased) by his sole Executrix Mrs.Sushila N. Rungta,
Mumbai Vs. WTO, S.A. No.30/Mum/1999 [arising out of W.T.A. No.105, 106 and
107/M/97 for Assessment Years 1989-90, 1992-93 & 1993-94] Mumbai, Bench ‘A’,
order dated 27/9/1999.
7.1.2 Power of the Tribunal to grant stay of recovery is toward tax, interest and even penalty.
Bhoja Reddy vs. CIT (1998) 231 ITR 47 (AP(48)
Shiv Shakti Rubber & Chemcial Works vs. ITAT 213 ITR 299 (All)
7.1.3 Rejection of Stay Petition by CIT is Required before proceeding to ITAT.
RPG
Enterprises vs. Dy. CIT (2001) 251 ITR 20 (AT)(Mum)
Contrary Decision:
Security & Detective Bureau Ltd. vs. ACIT (1993) 46 ITD 86 (Chennai)
Reuters India Pvt. Ltd. vs. Dy. CIT (2004) 3 SOT 886 (Delhi)
Asessee has to file separate stay petition for each assessment year.
Wipro Ltd. vs. ITO (2003) 86 ITD 407 (Bang).
7.4
Stay is effective for 180 days further extension of 180 days.
B. Sudhadra vs. ITO 272 ITR 100 (AT)(Hyd.)
Assessee can make fresh application
Tribunal has power to extend period of stay. Narang Overseas P. Ltd. vs. ITO (2007) 295
ITR 22 (Bom)
CASE LAW ON STAY:
a. Where the income determined on assessment is more than twice the income returned,
collection of tax should be stayed during appeal. Demand raised in high pitched
assessment need to be stayed, as its recovery would cause genuine hardship.
Maharana Shri Bhagwat Singahiji of Mewar v ITAT (1997) 223 ITR 192 (Raj).
Soul vs. Dy. CIT (2008) 173 Taxman 468 (Del.).
21 | P a g e
b. The Hon’ble Delhi High Court in the case of Valvoline Cummins Ltd vs. Dy. CIT
(2008) 307 ITR 103 (Del) has considered the Instruction No. 96 dated 21/8/1969
issued by the CBDT and held that where the income determined is substantially
higher than the returned income, that is, twice the latter amount or more, than the
collection of tax indispute should be held in abeyance till the decision on the appeal is
taken.
c. Soul vs. Dy. CIT (2008) 220 CTR 211 (Del.)
Issue: Whether the decision in Valvoline Cummins Ltd. vs. Dy. CIT (2008) 307 ITR
103 relying on Instruction No. 96 is bad in law in view of instruction no. 1914 of
1993 dt. 2/12/1993.
Held: Although Instruction No. 1914 of 1993 specifically states that it is in
supersession of all earlier instructions, the position obtaining after the decision of this
Court in Valvoline Cummins Ltd.(supra) is not altered at all.

The very question as to what would constitute the assessment order as being reasonably
high pitched in consideration under the said Instruction No. 96 and, there, it has been
noted by way of illustration that assessment at twice the amount of the returned income
would amount to being substantially higher or high pitched.
6.
Paper Book
It is desirable that a detailed paper book in conformity with rule 18 of the Income-tax
(Appellate Tribunal) Rules, 1963, is submitted in triplicate, as of the Income-tax
(Appellate Tribunal) Rules, 1963, is submitted in triplicate, as early as possible.
Whatever papers or documents or statements are proposed to be referred to or relied upon
at the time of hearing deserve to be included, indexed and paged and submitted before the
date of hearing of the appeal along with proof of service of a copy of the same on the
other side at least a week before.
22 | P a g e
Each paper should be certified as true copy by the party filing the same, or his Authorized
Representative and indexed in such a manner as to give the brief description of the
relevance of the document, with page numbers and the authority before whom it was
filed.
No supplementary paper book can be submitted without the permission of the Bench. If
the paper book is found not in conformity with the rule, can be ignored by the Bench.
Paper Book is an important document and deserves to be prepared with caution and care.
The Tribunal may suo motu direct the preparation of a paper book at the cost of the
appellant or the respondent containing copies of such statements, papers and documents
as it may consider necessary for the proper disposal of an appeal.
7.
Hearing:
The Tribunal shall notify to the parties the date and place of hearing of the appeal.
Sufficient time should be given. In case, any party is prevented by good, sufficient or
reasonable cause from getting the appeal argued on the specified date, must make an
application for adjournment sufficiently in advance and supported by the supporting
material. Authority Letter / Vkalatanama.should be filed in original.
The pecuniary jurisdiction of Single Member is Rs. 5 lakhs.( By Finance Bill 2015 limit
has been increased to Rs 15 lacs).
Other appeals are heard by a Division Bench
constituted of a Judicial and an Accountant Member. Looking to the intricate law and
difficult accounting principles, admixtures of the two is appreciable and has assisted in
dispensation of justice. It provides healthy atmosphere to interact and co-exist. Wealthtax appeals can be heard by any two Honourable Members. The ordinary rule is that in
case of a difference of opinion on any point or points between the Members of a Division
Bench, the view of the majority shall prevail. But if the Members are equally divided, the
duty of the members who heard the appeal is to state the point or points on which they
differ and to refer the case to the President of the Tribunal for a hearing on such point or
points to one or more other Member and such point or points shall be decided according
to the opinion of the majority of the Members. The Third Member can only decide the
point or points referred to him.
23 | P a g e
8.
POWERS OF THE TRIBUNAL
8.1
The Tribunal being the final fact finding authority enjoys all the powers conferred
upon by the Act on the authorities mentioned in Section 116 & has a Status of a
independent judicial body as per the provisions of Section 252 to 255 of the Act. The
powers conferred on the Tribunal to pass “such orders thereon as it thinks fit” be
discovered by reference to the jurisdiction of the authority whose order has given rise to
the appeal – CIT vs. Ram Murti 87 ITR 577 (All).
8.2
Every appellate authority has implied and incidental power to grant relief even if the
statute does not provide.
Bulk India Transport 266 ITR 144 (All)
Mohammed Katri 71 ITR 815 (SC)
8.3
To issue appropriate direction
Kapurchand Shrimal 131 ITR 451 (SC)
-
Consequential direction in interest of justice.
Matchless Machines & Technology vs. ITO ITA No. 8/M/2006 DT. 12/12/2008.
8.4
Right of assessee is not restricted to the plea raised by him. It is the duty of the authority
to allow relief on any other ground, if permissible
Ciba of India Ltd. vs. CIT (1993) 202 ITR 1 (Bom)
CIT vs. Mahalaxmi Textiles Ltd. (1967) 66 ITR 710 (SC)
Power of the Tribunal to grant relief under an alternate section – ITO vs. M.M. Textiles
28 DTR 321 (Mum) (Trib.)
Tribunal has inherent power to refix case for hearing to prevent Miscarriage of justice or
to grant substantial justice – opportunity of hearing should be given.
Mafatlal Securities Ltd. vs. Jt. CIT (2009) 119 ITD 444 (Mum)
8.5
Revenue cannot be given second innings to improve its case to make an addition.
216 ITR 99 (Ahd.) (AT) (Pg. 123) ITO vs. Gurubachansingh J. Juneja (Ahmed.)
73 ITD 125 (Del) (TM) ACIT vs. Anima Investment Ltd.
24 | P a g e
168 ITR 472 (Guj) CIT vs. Harikrishna Jethalal Patel
154 ITR 745 (Ker.) Travencore Tea Estates Co. Ltd. vs. CIT
9.
POWER TO ADMIT ADDITIONAL GROUNDS
9.1
Rule 11 of the ITAT Rules, 1963, provides that the appellant shall not except, by leave of
Tribunal, urge or be heard in support of ground not set forth in the memorandum of
appeal. However, the Tribunal is competent to allow the appellant to raise at the hearing
of the appeal an additional ground even without a formal amendment of the
memorandum of appeal.
9.2
National Thermal Power Co. Ltd. vs. CIT 229 ITR 383 (SC),
Jute Corporation of India v. CIT 187 ITR 688 (SC); Ahmedabad Electricity Co. Ltd. v.
CIT 199 ITR 351 (Bom); Ramgopal Ganpatrai & Sons v. CIT 24 ITR 362 (372) (Bom);
Anam Venkata Krishna Reddy v. CIT 172 ITR 425 (A.P.); Deepchand Kothari v. CIT
171 ITR 381 (Raj); J.S. Parkar v. V. B. Palekar 94 ITR 616(Bom). Leave to urge
additional grounds may be sought either in writing or by oral prayer. Rule 11 of the
Appellate Tribunal Rules speaks only of leave and the leave may be sought for either in
writing or by an oral prayer - Amines Plasticizers Ltd. v. CIT 223 ITR 173 (Gauhati).
Grounds of Appeal can be amended by taking leave of the Tribunal orally - Assam
Carbon Products Ltd. v. CIT 224 ITR 57 (Gauhati).
262 ITR 385 (Bom) Baby
Samuel vs. Astt. CIT
9.4
Additional Ground challenging the validity of assessment for want of jurisdiction can be
urged before any authority for the first time. Bar of estoppel or resjudicata does not
apply.
ACIT vs. Bijay Shankar Gupta (2009) 21 DTR 254 (Jd(Trib).
Question of limitation goes to root of the matter, duty of ITAT to consider the same
though raised for first time before it.
Mah & Mah ltd v/s. Dy CIT (2009) 22 DTR 361 (Mum )(SB)Trib.
25 | P a g e
In CIT vs. Hindustan Tin Works Ltd. (2009) 24 DTR 88 (Del.) the Delhi High Court
upheld the order Tribunal in rejecting the revenue plea to raise additional ground
pertaining to section 14A for disallowing expenditure incurred for earning exempt
dividend income because neither during the assessment proceeding nor during appellate
proceedings before CIT(A) the revenue had invoked 14A.
Issue raised before the AO has to be considered by the ITAT though the CIT (A) did not
render any view on it. Jehangir H C Jehangir V/s. ITO (2014) 112 DTR 262 (Bom) HC
Power to admit Additional Evidences before the Tribunal
9.5
Rule 29 does not confer any right on the parties as such to produce any additional
evidence either oral or documentary before the Tribunal. Such power has been vested
only in the Tribunal to admit fresh evidences & affidavits, etc. - CIT v. Smt. Kamal C.
Mehboobbani
214 ITR 15 (Bom); Dy.CIT v. Vira Construction Co. 61 ITD 33
(Mum)(TM). Where additional evidence enables the Tribunal to pass orders or for any
other substantial cause, it can require the parties to do so - Abhay Kumar Shroff v.
ITO 63 ITD 144 (Patna)(TM). If evidence produced by assessee is genuine, reliable
and proves assessee's case, then assessee should not be denied opportunity of it being
produced for the first time before the appellate authority - Jagbir Singh v. ITO 23 ITD
15; Electra (Jaipur) (P.) Ltd. v. IAC 26 ITD 236
9.6
In CIT vs. Motilal Hirabhai Spinning & Weaving Co. Ltd. 113 ITR 173 (179,180)
(Guj.), it was held that though the omission to record reasons as required by rule 29 was a
serious defect, it is not mandatory and the omission to record reasons for admitting
additional evidence did not vitiate such admission.
9.7
Newspaper report on Mkt condition admitted as evidence
Addl CIT v/s. Ratan cold storage 118 ITD 31(Agra)(TM)
Power to Remand.
9.8
In cognizance of the Circular of the CBDT issued in 1955, and the decision in Navnit Lal
C. Javeri vs. K.K. Sen 56 ITR 198, although at the time of the original assessments, the
assessee firm itself did not claim any relief u/s.84/80J and though the responsibility for
26 | P a g e
claiming refund and reliefs rested with the assessee, the assessing officer should have
drawn the attention of the assessee to this relief u/s.84/80J to which the assessee appeared
to be clearly entitled but which the assessee had omitted to claim – Chokshi Metal
Refinery vs. CIT 107 ITR 63 (Guj.).
9.9
Under Rule 28 of the ITAT Rules, 1963, the power of remand is only incidental to its
power to hear and dispose of the appeal. But power of remand cannot exceed the
jurisdiction u/s.254(1). Hence, Tribunal cannot exercise the power of remand for purpose
of enhancing the tax – V. Ramaswamy Iyengar vs. CIT 40 ITR 377 (Mad).
On remand Tribunal cannot direct to assess income less then returned income or at higher
than the assessed income.
CIT vs. H.P. State Forest Corp. Ltd. (2010) 36 DTR 181 (HP)
Coca Cola India (P) Ltd. vs. ITO (2007) 290 ITR 464
Bhav Shakti Steel Mines P. Ltd. vs. CIT (2010) 320 ITR 619 (Del.)
Power of Enhancement.
9.10
U/s.254(1), the Tribunal is not competent in an appeal filed by the assessee to give a
finding which is adverse to the assessee and make the latter’s position worse than before,
thus resulting in an enhancement of assessment – Puranmal Radhakishan & Co. vs. CIT
31 ITR 294 (Bom). Where a setting aside of the entire order of assessment and a remand
order has the effect of the probability of resulting in an enhancement of the Assessment
under appeal, the same cannot be done. The Tribunal is not empowered to do indirectly
what it cannot directly do – V. Ramaswamy Iyengar vs. CIT 40 ITR 377 (Mad);
Pathikonda Balasubba Setty (Deceased) vs. CIT 65 ITR 252 (Mys.).
-
McCrop Global P. Ltd. vs. CIT 309 ITR 434 SC
Tribunal had no power to take back the benefit conferred by the AO or enhance the
assessment
An appellant cannot be worse off by being in appeal before Tribunal
-
McCrop Global P. Ltd. vs. CIT 309 ITR 434 SC
-
Integrated Feeder Containers Services vs. Jt. CIT 2005 (4) SOT 357 (Mum)
27 | P a g e
-
Jt. CIT vs. Sakura Bank Ltd. 100 ITD 215 (Mum)
Power to call for documents.
9.11
u/s.255(6) r.w.s 131 of the Act, the Tribunal has the power to call for documents relevant
for deciding the appeal. In Union of India vs. Sheo Shankar Sitaram 95 ITR 523 (All) at
the request of the assessee, the Tribunal directed the department to produce certain
records, which pertained to the assessment and penalty proceedings and the department’s
claim of privilege u/s.124 of the Evidence Act, was negatived by the Court.
Power to Award Cost.
9.12
With effect from 1-6-1999, sub-section 2B is inserted to Section 254, which gives the
discretion to the Tribunal to award cost in suitable cases if the facts so warrant. In ACIT
vs. Shanti Star Builders ITA No.9601/B/91 dated 30-6-1999, Bench ‘B’, Mumbai, the
Tribunal awarded cost of Rs.2,000/- for the inconvenience caused to the assessee. In that
case, the departmental counsel had sought for an adjournment though on earlier occasion
it was agreed that on the next date, the case would be argued. The assessee’s counsel had
come
from
Calcutta
on
both
the
occasions.(
Also
see
Sushila
Malge
www.itatonline.com)
No power to make protective order:
9.13
Though Assessing Officer can make protective assessment, it is not open for the Tribunal
to make a protective order Smt. Hemlata Agarwal vs. CIT 64 ITR 428 (All.)
10.
EX-PARTE ORDER.
10.1
Rule 24 & 25 of the ITAT Rules, 1963, deals with procedure for hearing ex-parte by the
Tribunal. Proviso to rule 24 provides that when an appeal has been disposed off ex-parte
and the appellant appeals afterwards and satisfies the Tribunal that there was sufficient
cause for his non-appearance when the appeal was called out for hearing, the Tribunal
shall make an order setting aside the ex-parte order and restoring the appeal. If a notice is
sent to the Assessee by Registered Post, the postal authorities may send back the notice
stating that the assessee refused to accept or postal authorities may deliver to a person
28 | P a g e
who is not authorised to receive. If on receiving the acknowledgement from postal
authorities, ex-parte order is passed, if an assessee files Affidavit and brings to the notice
of the Tribunal that he has not received or he has not been served the notice, the Tribunal
should restore the matter. In Meghji Kanji Patel vs. Kundanmal Chamanlal AIR 1968
Bom 387, the Hon’ble Bombay High Court held that where an affidavit is filed the same
has to be accepted. This view of the Bombay High Court is affirmed by the Supreme
Court in Puwada Venkateswara Rao vs. Chindamana Venkataka Ramana AIR 1976
SC 869, 871.
10.2
In CIT vs. Multiplan India (P.) Ltd. 38 ITD 320 (Del), the reference was filed by the
department. On the date of hearing neither the representative of department was present
nor an adjournment application was moved. The Tribunal passed the order after 5 days
dismissing the appeal as unadmitted. Against the order, the department filed reference
application to refer the matter to the High Court. Hon’ble Tribunal rejected the reference
application on the ground that the department should have made application for
restoration of appeal under rule 24 of the ITAT Rules, 1963, and observed that revenue
choose to add to the litigation for no justifiable reason, hence, no question of law arises.
10.3
However, the Tribunal did not considered the ratio laid down by the Supreme Court in
CIT vs. Chennaiappa Mudaliar 74 ITR 41 (SC), wherein the court held that the Tribunal
must decide the case on merit and cannot dismiss it on non-appearance of the appellant,
hence judgement in Multiplan requires reconsideration. Also refer Jaipur Mineral
Development Syndicate vs. CIT 106 ITR 653 (SC).
Applications made for restoration of appeals which are dismissed ex-parte on account of
non-appearance, desire to be liberally construed.
Rainbow Agri Ind. Ltd. vs. ITAT (2004) 266 ITR 39 (Bom)
10.4
It has been observed in large number of cases, that matters have been disposed off by
applying the decision of Multiplan India and thereafter when an assessee makes an
application for restoration of the matter under rule 24 of the ITAT Rules, 1963, the
appeal is restored. Thus, it increases multiplicity of litigation. Matters come up for
29 | P a g e
hearing after approximately 5 years from the date of filing of the appeal, hence, it is quite
possible that the assessee may have changed his address. Hence, in such cases, before
passing ex-parte order, it is better if the notice is served through the Assessing Officer
which would save lot of time and unintended paper work.
10.5
Since the Tribunal fees has been increased to a maximum of Rs.10,000/-, it could not be
said that the assessee has no interest in pursuing the appeal and hence, pass an ex-parte
order applying the ratio of Multiplan India. At least where the assessee has filed
Vakalatnama / Authority Letter of his representative, before passing an ex-parte order, it
would be justified if a notice is sent to the representative of the assessee.
10.6
Duty of the Court is to decide correct interpretation of law, hence, it may not be desirable
to decide the issue which is an important question of law in an ex-parte order, however, if
it is inevitable, then the Tribunal may request any member of bar to help the court as
amicus curiae to help the Tribunal. In such situation, help of Bar Association may be
sought. If such system is developed, it may go a long way in building the confidence of
Institution in the mind of the public. Even ex-parte order should not lead to punishment to
an assessee who may not be in a position to engage a competent representative.
10.5
Tribunal should decide the appeal on merits rather dismissing on ground of nonappearance of the party.
Chemipol vs. UOI 244 ELT 497 (Bom)
Bharat Petroleum Corporation Ltd vs. ITAT (Bombay High Court)
Tribunal has no power to dismiss appeal for non-appearance of appellant.
It has to deal with the merits. An application for recall of an ex-parte
dismissal order is under s. 254(2) & must be filed within 4 years from the
date of the order. The Tribunal must permit “mentioning” of matters
Similarly Hon SC in Central Excise matter Held that CESTAT has to decide the matter
on merits . No power to dismiss the appeal for want of procecution even if assessee
cousel has not appeared.
Balaji Steel Re- Rolling mills V/s CCE (2014) 272 CTR 205 (SC)
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Procedure when assessee claims identical question of law is pending before the High
Court or Supreme Court – Sec. 158A
Titanor Components Ltd. vs. CIT 184 Taxman 10 Bom
11.
DUTIES OF TRIBUNAL.
11.1
Tribunal being a final authority as far as facts is concerned, the Tribunal has to consider
and decide all issues that are brought before it. It cannot decide only one issuing arising
out of many issues and decline to go into the other issues raised before it on the ground
that further issues will not arise in view of the finding on the issue decided by it. If the
Tribunal declines to consider and decide the other issues, it will only protract and delay
the proceedings, for the assessee has to get the decision of the Tribunal on the initial
point set aside by approaching the High Court. And thereafter again go before the
Tribunal for a decision on other issues left undecided by it earlier. This will amount to
multiplication of the proceedings under the Act. It is desirable that the Tribunal should
avoid disposing of the matters on preliminary issues alone, without deciding all the issues
raised before it. It should as far as possible give its view on all the points raised before it
so that the High Courts have the benefit of its decision on other points also, if necessary CIT vs. Ramdas Pharmacy 77 ITR 276, 291 (Mad.); Udhavdas Kewalram vs. CIT 66
ITR 462(SC).
8.1
Tribunal being a final authority as far as facts is concerned, the Tribunal has to consider
and decide all issues that are brought before it and pass reasoned order / speaking order .
The Order should be passed within 3 month from date of hearing.
Shiv
Sagar
Veg Restaurant vs. ACIT 317 ITR 433 (Bom)
8.2
A concession of law made by an assessee or his authorized representative is not binding.
CIT vs. Archana R. Dhanwatory (1982) 136 ITR 355 (Bom)
ITO vs. Estate of Late K.S. Engineer (2001) 70 TTJ 161 (Mum)
WRONG CONCESSION MADE BY A COUNSEL BEFORE THE COURT
CANNOT BIND THE PARTIES.
1 WOI & Anr vs. S.C. Parashar (2006) 3 SCC 167
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2. P. Nallammal & Anr. Vs. State by Inspector of Police. (1999) 6 SCC 559
3. As regards the legal issues are concerned, assuming the assessee agrees for addition, the
same is not binding on him - Gauri Sahai Ghisa Ram v. CIT120ITR 338 (All) 4 -Rani
Anand Kunwar v. CIT 8 ITR 126 (Oudh). This is for the reason that there is no concession
on law.
11.2
11.3
Tribunal should pass reasoned order / speaking order
-
Manibyrabha vs. CIT (2004) 265 ITR 560 (Ker)
-
CIT vs. Bright Auto Motive & Placties Ltd. 280 ITR 157
-
Shiv sagar veg restaurant v/s. Asst CIT 317 ITR 433 BOM
The Tribunal is under a duty to decide all questions of fact and law raised in the appeal
before it; for the purpose it must consider whether on the materials relied upon by the
assessee his plea is made out. The Tribunal cannot make arbitrary decisions; it cannot
find its judgments on conjectures, surmises or speculation. Between the claims of the
public revenue and of the taxpayers, Tribunal must maintain a judicial balance – Esthuri
Aswathiah vs. CIT 66 ITR 478 (SC); Omar Salay Mohamed Asit vs. CIT 37 ITR 151
(SC).
11.5
Order should be pronounced in open court.
CIT vs. Sudhir Choudhrie (2005) 278 ITR 490 (Del.)
13.
BINDING NATURE OF HIGH COURT JUDGEMENTS
Doctrine of binding precedent:
The doctrine of binding precedent has merit of promoting certainty and consistency in
judicial decisions and enables an organic development of law ‘besides providing
assurance to an individual as to the consequence of transaction, forming part of his daily
affairs.
UOI vs. Raghubir sing 178 ITR 548 (SC)
13.1
As per the doctrine of precedent, all lower Courts, Tribunals and authorities exercising
judicial or quasi-judicial functions are bound by the decisions of the High Court within
whose territorial jurisdiction these Courts, Tribunals & authorities functions.
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13.2
Tribunals functioning within jurisdiction of a particular High Court are bound to follow
the decision of the jurisdiction High Court - State of AP v. Commercial Tax Officer 169
ITR 565 (AP); CIT vs. Deepak Family Trust No.1 211 ITR 575 (Guj.).
13.3
ITO is bound to follow the decision of Supreme Court as also by the decision of High
Court of the State within whose jurisdiction he is functioning - K. Subramanium ITO v.
Siemen India Ltd. 156 ITR 11 (Bom); CIT vs. G. Dalabhai & Co. 226 ITR 922 (Guj.).
13.4
Tribunal not applying decision of High Court of same Jurisdiction. Order of Tribunal
was erroneous
- Shri Mahabir Industries v. CIT 220 ITR 459 (Gauhati); Air
Conditioning Specialists Pvt. Ltd. vs. Union of India 221 ITR 739 (Guj.).
13.5
As per the doctrine of precedent, all lower Courts, Tribunals and authorities exercising
judicial or quasi-judicial functions are bound by the decisions of the High Court within
whose territorial jurisdiction these Courts, Tribunals & authorities functions.
CIT vs. Thana Electricity Supply Ltd. (1994) 206 ITR 727 (Bom)
Consolidated Pneumatic Tool Co. (India) Ltd. vs. CIT (1994) 209 ITR 277 (Bom)
Mercedeze Benz v/s UOI 2010 (252) ELT 168 Bom.
13.6
(a) Yucca Finvest P. Ltd. 285 ITR 198 (Mum)
Unless a contrary decision is given by the jurisdictional High Court which is binding on
the Tribunal, it should respect the law laid down by another High Court. However the
same is not binding.
b)
Tribunal is duty bound to follow the decision of a High Court, if there is no
contrary decision available from any other High Court Maharashtra State Warehousing
Corp. Ltd. vs. Dy. CIT (2009) 122 TTJ 865 (Pune)
c)
If the revenue has not challenged the correctness of the law laid down by the High
Court and has accepted it in the case of one assessee then it is not open to the Revenue to
challenge its correctness in the case of other assessee without just cause.
UOI vs. Satish Panalal 249 ITR 221 (SC) ;
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UOI vs. Kaumudini N. Dalal 249 ITR 219 (SC)
CIT v/s. J. K. Charitable trust (2008) 308 ITR 161 (SC)
BINDING NATURE OF ORDER OF ONE BENCH OF TRIBUNAL ON ANOTHER
BENCH.
14.1
For the sake of uniformity, one Bench of the Tribunal is bound to follow the view
expressed by another Bench of the Tribunal unless the earlier view is per incurious - CIT
v. L.G. Ramamurthi 110 ITR 453 (Mad) ; CIT v. S. Devaraj 73 ITR 1 (Mad).
14.2
Tribunal should not come to a conclusion totally contradictory to the conclusion reached
by the earlier Bench of the Tribunal. Where a Bench differs from an earlier Bench, the
matter should be referred to a larger Bench - CIT v. Goodlass Nerolac Paints Ltd. 188
ITR 1 (Bom). UOI vs. Paras Laminates Pvt. Ltd. (1990) 186 ITR 722 (SC)
Pradip Chandra Parija vs. Pramod Chandra Patniak (2002) 254 ITR 99 (SC)
14.3
a)
2006 (10) SOT 1 Dy. CIT vs Padam Prakash (HUF)
Special Bench decision of three members should have precedence over Third Member
decision.
b) Oman International Bank 286 ITR 8 (AT)(SB)
Third Member decision is like the decision of Special Bench should be followed in same
manner.
C ) Despite Stay by High Court, Special Bench verdict is binding on the ITAT . CIT
v/s. Janapriya Engineers Syndicate (2015) 113 DTR 311 (AP) HC.
15.
BINDING NATURE OF ORDERS OF TRIBUNAL
15.1
The First Appellate Authority or the Assessing Officer are bound by the orders of the
Tribunal. Even where the assessee
or the department has pursued the
matter
in
reference proceedings, it does not act as a kind of stay of operation of the order of the
Tribunal.
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15.2
The Assessing Officer cannot ignore the decision taken by the Tribunal in favour of the
assessee and take a contrary view - ITO v. Siemens India Ltd. & another 156 ITR 11
(Bom). Bank of Baroda vs. H.C. Shrivastava (2002) 256 ITR 385 (Bom).
15.3
The Assessing Officer cannot refuse to follow the order passed by the Commissioner
against the application u/s.132(11) on the ground that the Commissioner had no
jurisdiction over the matter - Union of India v. Pradip Kumar Saraf & Others 207 ITR
679 (Cal), Sree Rajindra Mills Ltd. v. CIT (1970) 28 STC 483, Union of India v.
Kamlakshi Finance Corpn. Ltd. 1992 AIR SC 711 (712).
15.4
Finding of CESTAT binding on I.T.
CIT vs. Prince Gutka Ld. 312 ITR 341 (St.)
Miscellaneous Application before Appellate Tribunal
1.
Rule
Rule 34A of the Appellate Tribunal Rules 1963 which was inserted w.e.f 25th July 1991
provides for the procedure for dealing with applications under Section 254(2
1.2
As per Section 254(2), the Tribunal is empowered to rectify within a period of four years
from the date of the order passed by the Tribunal u/s. 254(1), any mistake which is
apparent from the record either suo-motu or on an application. Application for
rectification to be made within 4 yrs from the date of the order to be rectified. Delay
cannot be condoned.
Arvindbhai H. Shah vs. Asstt. CIT (2004) 270 ITR 125 (AT) (Ahm)(SB)
Rahul Jee and Co. P. Ltd. vs. Astt. CIT (2009) 310 ITR 255 (Del.)(AT)
1.3
In CIT v. Ramesh Electric & Trading Co. 203 ITR 497 (Bom), it has been held that only
mistake apparent from record can be rectified. Failure of Tribunal to consider arguments
is not a mistake apparent from record, which can be rectified.
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2. Hearing
The Full Bench of the Delhi High Court in Smart Pvt. Ltd. vs ITAT (1990) 182 ITR 384
took the view that although there was no specific provision for dealing with an application
under Section 254(2) the rules of natural justice would require that both parties be heard
before disposing of the application.
The Hon’ble Bombay High Court in the case of Jain Trading Co. vs. UOI 282 ITR 640
(Bom) has held that the assessee should be heard prior to disposal of the application
u/s. 254(2).
3.
Tribunal cannot rehear the appeal u/s. 254(2) Mahesh Bery vs. Astt. CIT 317 ITR 110
(Kol.)(AT)
4.
Review : No power of Review
There is no doubt that the power of review is not an inherent power but must be conferred
by law either specifically or by necessary implication. (See Patel Thackersy vs.
Pradyumansinghji Arjunshingji AIR 1970 SC 1273).
5.
Illustrations
A.
Order rejecting Miscellaneous CIT vs. ITAT (1992) 196 ITR 838
Application cannot be rectified.
(Oris)
76 TTJ 224 – Shristhi Pal vs. ITO
B.
Order contrary to pronouncement A decision which is rendered contrary
constitutes mistake apparent on the to a pronouncement made in open court
record.
would constitute a mistake rectifiable.
CIT vs. G. Sagar Suri & Sons (1990)
185 ITR 484 (Del).
C.
Order made under misconception Maharaja Martant Singh Ju Deo vs.
or misapprehension rectifiable.
CIT (1988) 171 ITR 586 (MP)
D.
Failure to consider preliminary Laxmi Electronic Corporation Ltd. vs.
objection or deal with a ground of CIT (1991) 188 ITR 398 (All)
appeal rectifiable.
CIT vs. Keshav Fruit Mart (1993) 199
ITR 771 and ITO vs. ITAT (1965) 58
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ITR 634
E.
Failure to consider alternative CIT vs. ITAT (1988) 172 ITR 158 (MP)
argument rectifiable.
F.
Failure to consider material on CIT vs. Mithalal Ashokkumar (1986)
record rectifiable.
158 ITR 755
G.
Order passed on erroneous
CIT vs. Shakuntala Rajeshwar (1986)
assumptions rectifiable.
160 ITR 840 (Del)
H.
Order based on a decision
Kil Kotagiri Tea and Coffee Estates
subsequently reversed rectifiable.
Company Ltd. vs. ITAT (1988) 174 ITR
579
I.
Subsequent decision of Supreme a) Nav Nirman P. Ltd. vs. CIT
Court, High Court if directly on
174 ITR 574 (MP)
point rectifiable
b) CIT vs. Smt. Aruna Luthra
252 ITR 76(P&H) (FB)
c) Motilal Padampat Udyog Ltd. vs.
CIT, 186 ITR 180 (Bom)
d) Poothundu Plantations P. Ltd. vs.
ITO (1996) 221 ITR 557 (SC)
e) CBDT Circular No. 68
Dt. 17/11/1971
J.
Non consideration of a provision of
Non-consideration of relevant law which would have material bearing
provision of law rectifiable.
on the decision is a glaring obvious and
self-evident mistake apparent from the
record. Such a mistake would be
required to be corrected (CIT vs. Quilon
Marine Produce Co. (1986) 157 ITR
448). Modu Finblo vs. 1st WTO (1995)
53 ITD 53 (Pune) (TM) ITO vs. Gilard
Electronics (1986) 18 ITD 176 (JP),
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ACIT vs. Sornamy Alkington Ltd.
(1994) 49 ITD 207 (Delhi).
K.
Decisions not cited referred to in Lakhmini Mewal Das vs. ITO (1972) 84
order.
ITR 649. (Cal.)
L.
Order can be amended in the light M. K. Venkatachalam vs. Bombay
of retrospective amendment.
Dyeing and Mfg. Co. Ltd. (1958) 34
ITR 143 that an amendment with
retrospective effect would require an
amendment
and
rectification
consequent to the retrospective
amendment. See also CIT vs. Eva Raha
(1980) 121 ITR 293 (Gau); CIT vs.
Kelvin Jute Co. Ltd. (1980) 126 ITR
679 (Cal.) Even if a reference has been
made ITO vs. Homi Mehta & Sons (P)
Ltd. (1985) 14 ITD 64 (Bom).
M. Srinivasalu vs. UOI 239 ITR 282
(Kar)
M.
Failure to consider argument CIT vs. Ramesh Electric and Trading
advanced not an error apparent on Co. (1993) 203 ITR 497 (Bom) the
the record.
question arose as to whether the non
consideration
of
an
argument
constitutes a mistake apparent on the
record. The Bombay High Court held
that such non-consideration would be
an error of judgement but not an error
apparent on record.
The
Bombay High
Court
in
Khushalchand B. Daga vs. ITO (1972)
85 ITR 48 has endorsed the principle
that a Tribunal has an inherent
jurisdiction to rectify a wrong
committed by itself when that wrong
causes prejudice to a party for which
that party was not responsible.
Unfortunately the High Courts attention
had not been drawn to Daga’s case in
Ramesh Electric (Supra).
N.
Absence of reasoning no ground 248 ITR 577 (P&H) - Popula
for rectification
Engieneering Co. vs. ITAT – Absence
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of adequate reasons in an order passed
u/s 254(1) cannot per se be regarded as
a mistake apparent within the meaning
of 254(2).
However
various
courts
have
repeatedly held that the Tribunal must
pass a speaking order dealing with each
issue and grant relief after applying
provision of law.
Shahid Atiq 97 ITD 22(Del.)
CIT vs. Simplex 282 ITR 542 (MP)
Vipul Fashion P. Ltd. vs. Astt. CIT
284 ITR 332 (Guj.)
O.
Violation of natural justice ground 257 ITR 440 (Raj) – CIT vs. S.S.Gupta
for rectification
–
P.
Appeal
decided
without 179 CTR 265 (SC) – Jyotsna Suri vs.
considering pending application ITAT
rectifiable.
Q.
Reliance on wrong section, order 261 ITR 49 (Del) – Seth Madanlal
rectifiable.
Modi vs. CIT
Also see 267 ITR 450 (Mad) Prithviraj
Chohan vs.. CIT.
R.
Non consideration of decision Honda Siel Power Products Ltd. vs.
cited of Co-ordinate Bench
CIT (2007) 295 ITR 466 (SC)
Tribunal passing order without F.F.E Mineral (I) P. Ltd. vs. Jt. CIT
considering decision of Supreme 84TTJ 907 (Chen.)
Court / High Court is mistake
Mohan Meakin Ltd. vs. ITO 89 ITD
which can be rectified.
179 (Del.)(TM)
Himachal Pradesh Financial Corp. vs.
CIT 233 ITR 450 (MP)
- ACIT vs. Saurashtra Kutch Stock
Exchange Ltd. (2008) 305 ITR 227
(SC)
In rectification proceeding u/s. 254(2) Tribunal cannot look into Merits of the case.
CIT vs. Eamesh Exports Ltd. Appeal No. 26 of 2010 dt. 25/2/2001.
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Non Consideration of decision citied of the Co-ordinate Bench
Honda Siel Power Products Ltd. vs. CIT (2007) 295 ITR 466 (SC)
ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC)
Failure to apply judgement of jurisdictional High Court .
State Bank of India vs. DCIT (Bombay High Court)
S. 254(2): If the Tribunal accepts that a mistake has crept in the order, interests of justice is
served if the entire order is recalled (suo moto by the ITAT) & appeal re-heard. Appeals
should not be disposed off in “light hearted” and “casual manner”
We are not happy in the manner in which the Tribunal has decided the Miscellaneous
Application. If the Tribunal was required to devote so much time for assigning reasons in
more than five paragraphs in a lengthy eight page order on the Miscellaneous
Application so as to correct an obvious mistake by exercising powers under section
254(2) of the IT Act, then, interest of justice would have been sub-served and better had
the Tribunal revived the entire Appeal and not partially. If there was a mistake with
regard to the claim of deduction, we do not think that the tribunal was justified in
directing partial revival of the Appeal…… We do not think that interest of justice and
equity is served by non consideration of vital materials by the last fact finding authority,
namely the Income Tax Appellate Tribunal. That the Tribunal was required to recall its
earlier orders and for the reasons which have been assigned by it would indicate that it
failed to apply its mind at the initial stage to the grounds raised in the Appeal and in their
entirety. It omitted from consideration crucial documentary material as well. In such
circumstances, such partial revival of the Appeal would not meet the ends of justice.
ART OF REPRESENTATION
1.1
The art of representation is nothing but art of communication or rather the art of
persuasion. You must be able to convince the deciding authority that it is so.
The art of representation is not confined only to court, but any where in life, in any
forum. The art of representation involves some degree of advocacy.
Advocacy is about persuading people, you cannot go through life without, on occasion
needing to persuade. Advocacy is often useful and vital, in negotiation, in meetings and
public lectures. If you do not practice law at all, principles of advocacy is still a valuable
skill, a transferable skill, a life long skill.
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1.2
Elements of persuasion
The task is threefold:
a)
to be heard; to be interesting; to engage the audience in the presentation;
b)
to get the message across; to select the right content and to emphasise the key
points; and
c)
to persuade the audience to accept the view advocated.
Presentation skills are the key to persuasion because presentation carries the message.
1.3
SOME IMPORTANT PRINCIPLE OF GOOD REPRESENTATION:
A.
There is no substitute for hard work. One must master the facts and read the law on the
subject.
B.
Adhere to dress code and file your letter authority in advance.
C.
Observe Decorum in the court.
D.
In the opening argument put forth the best points which cannot be disputed and carry the
judge with you.
E.
While arguing one must narate the fact chronologically before the court, one may take
assistance of the paper book which is filed. One must avoid unnecessary and irrelevant
papers in the paper book. Thereafter one should proceed to state the submissions and
thereafter support the same with relevant case law.
F.
You must know the Judge mind while you are arguing and tactfully you must put your
points.
G.
When the Judge is making a point it is always advisable to listen carefully understand his
view point and then reply.
H.
One should keep a smile on his face and should have a good sense of humour. One must
have common sense in a good measure.
I.
Do not interrupt the Judge repeatedly, his ego is hurt. It is not advisable to rub the
Judge’s psychology. One has to be fair to the Judge as well as other side. You must never
be unfair to your opponent.
J.
You must remember that every man has his ego and when one is sitting on the judicial
chair, the ego becomes still more important and that has to be respected.
K.
One must never lose the temper in the court;
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L.
You cannot win all the cases and one should not get over identified with the client or the
case.
M.
One should not insist on displaying one’s oratorical skill or his knowledge, which would
not be relevant for the court. One should know when to stop.
N.
Build the Reputation
1.4
Edward Abbott Parry, an eminent English Judge in his book captioned “Seven Lamps of
Advocacy” published by T. Fisher Unwin Ltd., Fourth Impression 1926, has highlighted
seven important attributes of a successful lawyer or seven lamps, which enlighten his
future path as a professional for effectively pursuing legal profession before courts.
These seven lamps have been enumerated by the author as under:
1.
The Lamp of Honesty;
2.
The Lamp of Courage;
3.
The Lamp of Industry;
4.
The Lamp of Wit;
5.
The Lamp of Eloquence;
6.
The Lamp of Judgement; and
7.
The Lamp of Fellowship.
Thank you
JAI HIND
Ajay R. Singh
Advocate
Mob. No. 9892212125
Email: ajaysingh.legal@gmail.com
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