Advocate Rahul R. Sarda has meticulously explained the entire procedure for filing appeals before the CIT(A) and drafting applications for stay of demand. The author has also prepared a check-list of issues that require to be borne in mind to ensure that nothing important is omitted. He has also made extensive reference to all the important judgements which have a bearing on the subject matter. The Guide will prove invaluable to all taxpayers and tax professionals
(1) By 31st March, 2016, in addition to the numerous reopened assessments, Assessing Officers (AOs) shall finalise scrutiny assessments under section 143(3)/ 144 of the Income-tax Act, 1961 (the “Act”) for Assessment Year (AY) 2013-14, and for AY 2012-13 in cases where references had been made to Transfer Pricing Officers. Though scrutiny assessments constitute less than one percent of total cases [source: Office Memorandum F. No. 279/Misc./52/2014-(ITJ) dated 7th November, 2014], just like every year, this will result in demands worth thousands of crores of rupees being raised against assessees, followed by a spate of appeals with the Commissioners of Income-tax (Appeals) [the “CIT (A)”]. This write-up is an attempt to educate assessees on how to deal with assessment orders resulting in demands and on how steps must be taken by assessees to move the appellate authority including filing of stay applications.
(2) This write up is divided in two parts – (i) Appellate remedy i.e. law and procedure in filing appeals before CIT (A); and, (ii) Law and procedure regarding stay of demand. However, considering there is still some time left for 31st March, assessees may take note of the following points whilst the assessments are not finalised by AOs; these points may help their case in further proceedings under the Act.
Whilst the assessment is pending before AO
(3) Before the AO frames the assessment vide a formal order, assessees may check compliance with the following points:
(i) Whether all notices have been duly complied with – If not, there is still time left for compliance;
(ii) Obtain all statements, evidence, recorded reasons etc. which the AO has sought to use against the assessee if not already obtained – A letter requesting these details may be written to the AO;
(iii) Even if the AO has not confronted the assessee with any statement, evidence etc. but the assessee suspects that some material could be used against it, a precautionary letter may be written to the AO requesting him to provide such material should the AO choose to rely on the same in framing the assessment;
(iv) Request the AO to provide an opportunity of cross-examination of persons whose statements have been referred to by the AO during assessment proceedings, if not already asked for;
(v) Any evidence, reports or other material which could substantiate assessee’s case may be filed, if not already filed – Every effort must be made to do away the need for filing additional evidence before the CIT (A). Filing of additional evidence before the CIT (A) results in delay in completion of appellate proceedings;
(vi) If the AO has sought to secure from the assessee attendance of any third party and in spite of assessee’s best efforts, it is unable to do so, inform the AO of this fact and request him to issue summons to the said party – It may be noted that as a private party, assessee cannot enforce attendance of any other party before the AO while the AO has statutory powers to do so – Refer Chempure v. ITO  40 SOT 164 (Mum.);
(vii) If statement of assessee or his director, employee etc. has been given under ignorance of facts or law and has been recorded by AO during assessment proceedings, consider filing a proper clarification to the statement – This should be done only after considering all implications under the Act and under general law;
(viii) Check if statutory notices had been issued/ served properly and within time – If not, an objection to this effect may be raised before completion of assessment proceedings, if not already raised. As per section 292BB of the Act, certain objections cannot be raised unless taken before completion of assessment proceedings;
(ix) In case of penalty proceedings, file explanation regarding the stand taken by the assessee and demonstrate how the same, though not accepted by the Revenue, was bona fide. The sustainability of penalty under section 271(1)(c) of the Act, to a large extent, depends on the explanation of the assessee and its substantiation – Refer Explanation 1 to section 271(1)(iii) of the Act.
I. Once assessment order is passed – Filing of appeal before CIT (A)
A. Should appeal be filed in all cases?
(4) Once the assessment order is passed by the AO, an assessee can file an appeal with the CIT (A) under section 246A of the Act. However, before filing the appeal, assessees must consider the pros and cons of filing the appeal. This is because CIT (A) has powers of enhancement and the entire assessment proceedings are open before him. Furthermore, an appeal once filed cannot be withdrawn at the instance of the assessee. On the other hand, the appellate authority in its discretion may allow withdrawal of appeal and dismiss the same as not pressed.
CIT v. Rai Bahadur Hardutroy Motilal Chamaria  66 ITR 443 (SC): Once filed, an appeal before CIT (A) cannot be withdrawn by the assessee.
CIT v. Sakseria Cotton Mills Limited  124 ITR 570 (Bom.): The entire assessment proceedings are open before the CIT (A).
(5) In case the assessee decides not to file an appeal, it is advisable that the tax demanded be paid expeditiously within the time allowed. If the assessee decides to not file an appeal owing to smallness of tax amount, but does not agree with the tax demand in-principle, assessees should file a letter with the AO clearly stating this fact. Though res judicata is not applicable to income-tax proceedings, this preemptive measure should preclude the Revenue from alleging acquiescence on part of the assessee should the assessee decide to challenge an assessment order in a subsequent year on the same ground.
B. Statement of Facts and Grounds of Appeal – Important, yet largely ignored
(6) Once the assessee decides to challenge the tax demand, it has to file an appeal before the CIT (A). Before the actual representation of matters before the CIT (A), comes the stage of filing of the appeal i.e. the Statement of Facts and Grounds of Appeal, a step which does not get the deserved attention from assessees. In many cases, it is observed that the Statement of Facts is not filed before the CIT (A) or is filed in a cursory manner. The Statement of Facts and Grounds of Appeal before CIT (A) are the most important documents when appeals are filed before the Income-tax Appellate Tribunal (the “Tribunal”) and High Court. This is because in appeals before the Tribunal or the High Court, Statement of Facts and Grounds of Appeal before CIT (A) compulsorily form part of the record before them.
(7) Before the Tribunal, Statement of Facts cannot be filed. Therefore, it may not be possible for assessees to bring out new facts on record in its favour unless the same have been duly so brought latest before the first appellate authority. Furthermore, bringing out certain additional facts directly before the Tribunal may result in the matter being remanded back to the lower authorities, resulting in delay.
(8) Also, the Grounds of Appeal before the Tribunal should be concise and without any argument or narrative, as per Rule 8 of the Income-tax (Appellate Tribunal) Rules, 1963. Therefore, it is through the Grounds of Appeal before the CIT (A) that an assessee can bring out that a particular point was raised before the lower authorities. Therefore, assessees must file a detailed and comprehensive Statement of Facts and Grounds of Appeal before the CIT (A).
(9) The following points must be kept in mind while drafting the Statement of Facts:
(i) The same should be comprehensive and complete;
(ii) Statement of Facts must be used as an opportunity to bring additional facts on record if the same could not have been so brought before the AO;
(iii) All factual mistakes/ errors/ incorrect observations of AO must be specifically mentioned, challenged and rebutted. This would include instances where the AO has wrongly stated in the assessment order that certain details were called for and not submitted. Wherever possible, the correct position should be expressly mentioned;
(iv) Issues such as lack of proper opportunity of being heard or violation of any other principle of natural justice (such as denial of opportunity of cross examination, relying on material behind assessee’s back etc.) must be specifically brought out – This will also help the assessee’s case for admission of additional evidence under Rule 46A of the Income-tax Rules, 1962 (the “Rules”), if required.
(10) The following points must be kept in mind while drafting the Grounds of Appeal:
(i) Separate ground for each addition/ issue must be taken;
(ii) Grounds should highlight all controversies involved in the appeal;
(iii) They should not be vague or general in nature;
(iv) Issues such as lack of proper opportunity of being heard or violation of any other principle of natural justice must be specifically taken in the Grounds of Appeal;
(v) Statement of facts should not be mixed with Grounds of Appeal;
(vi) Alternative plea, without prejudice grounds must be taken, where the circumstances so require;
(vii) Errors, if any, in computation of tax and interest in the Tax Computation Form of AO must be specifically taken in the grounds;
(viii) A prayer to add, amend, alter or withdraw any ground must be made in the end.
(11) Should an assessee omit to raise any ground of appeal at the time of filing of appeal, the same can be done subsequently before the CIT (A) as per the decision in the case of Jute Corporation of India v. CIT  187 ITR 688 (SC). However, it must be kept in mind that once an assessee raises an additional ground before the CIT (A), the notice thereof must be given by the CIT (A) to the AO, which may result in delay in disposing off the appeal. Therefore, effort must be made to file comprehensive Grounds of Appeal before the CIT (A) along with Form No. 35 itself.
(12) The time between the filing of the appeal with the CIT (A) and the actual hearing of appeal by the CIT (A) may be used by assessees to obtain information/ material on which the AO has relied on during assessment proceedings, but has failed to provide notice thereof to the assessee. A letter to the AO requesting such details or an application under the Right to Information Act, 2005, depending on the facts and circumstances of the case, may be used by the assessee. This would help in avoiding delays after hearings during the appellate proceedings commence.
C. Agreed additions – Whether appeal can be filed?
(13) No appeal can be filed against agreed additions.
Kanshi Ram Wadhwa v. CIT  138 ITR 830 (P&H)/ Anil Kumar v. ITO  26 SOT 17 (Asr.) (URO): Once addition was made on agreed basis, same could not be challenged in appeal before CIT (A).
(14) In case the assessee has agreed for a particular addition under a wrong presumption of facts or law, the same must be brought out in the Statement of Facts before the CIT (A) and also by way of a rectification application before the AO.
Rameshchandra & Co. v. CIT  168 ITR 375 (Bom.): Where an assessee has made a statement of fact, he can have no grievance if the AO taxes him in accordance with that statement and, he cannot file an appeal. Therefore, it is imperative, if the assessee’s case is that his statement has been wrongly recorded or that he made it under a mistaken belief of fact or law, that he should make an application for rectification to the AO. Until rectification is made, an appeal is not competent.
D. Delay in filing appeals – Manner of filing application for condonation of delay
(15) The appeal must be filed in Form No. 35 and as per section 249(2) of the Act, within 30 days of service of notice of demand. It is important to note that the period of limitation starts from the date of such service. Therefore, even if any application under section 154 of the Act for rectification is pending before the AO, assessees must not wait for its disposal before filing the appeal with the CIT (A).
(16) Section 249(3) gives power to the CIT (A) to admit a belated appeal, if there is sufficient cause for the delay. In case of delay in filing the appeal, the appeal should be filed along with an application for condonation of delay explaining delay day-by-day [refer: Soorajmull Nagarmal v. Golden Fibre and Products AIR 1969 Cal 381] along with supporting evidence, if any, such as affidavit, doctor’s certificate, etc. Care must be taken to explain the delay right from the date of expiry of the period of limitation till the date of actual filing of the appeal.
Collector, Land Acquisition v. Mst. Katiji & Others  167 ITR 471 (SC): The Supreme Court has held that the Courts should have pragmatic & liberal approach in admitting the appeal beyond the period of limitation.
N. Balkrishnan v. M. Krishnamurthy (1998) 7 SCC 123: The only criterion for condoning the delay is acceptability of explanation irrespective of the length of delay. The primary function of the Court being adjudication of the disputes between the parties and to advance substantial justice, it is not enough to turn down the plea of the litigant and to shut the door against him for some lapse on the part of the litigant for the delay. If explanation does not come forth as part of a dilatory strategy, the court must show utmost consideration.
(17) If an assessee chooses to support its condonation application with an affidavit, it must give due consideration to the manner of drafting and filing affidavits. The function of swearing on oath is different from the function of simple attestation of an instrument as held in the case of Kunal Surana v. ITO  144 ITD 195 (Mum). The following points regarding affidavits merit consideration as per this decision:
(i) The affidavit must not be vague and general in nature. It should be to the point sufficiently explaining the cause for delay and demonstrating the bona fides of the assessee;
(ii) It must be divided into paragraphs and each paragraph must be numbered consecutively, and as nearly as may be, shall be confined to a distinct portion of the subject;
(iii) Affidavit must state how much of it is based on knowledge and how much of it is based on belief and the grounds of belief must be stated – State of Bombay v. Purushottam Jog Naik AIR 1952 SC 317;
(iv) Affidavit must be properly endorsed by the notary regarding oath of affirmation before him by the executant of the affidavit;
(v) The place and date of administration of oath must be mentioned;
(vi) The words “sworn before me” must be mentioned by the notary on the affidavit;
(vii) Executant must sign the affidavit before the notary;
(viii) The notary must sign the affidavit, put official notary seal and stamp, mention his registration number and also the General Register Number (unique for each document executed before the Notary) on the affidavit.
(18) While every effort must be made by the assessee to explain the delay with appropriate documentary evidence, the decision in the case of Vasu & Co. v. State of Kerala (2001) 10 KTR 30 (Ker.) may be referred to, wherein it has been held that if the court was satisfied that sufficient explanation had been given for condoning delay, then the affidavit could be accepted as evidence and insistence of proof of what had been stated in the affidavit would only prolong litigation.
E. Payment of admitted taxes – Precondition for maintainability of appeal
(19) As per section 249(4) of the Act, an assessee must (a) pay the amount of tax due on returned income, or (b) the amount of advance tax that would have been payable by it, in case no return is filed as a precondition for admissibility of appeal by the CIT (A). In case of (b) above, the CIT (A) may, for good and sufficient reason to be recorded in writing, exempt the assessee from such payment upon an application by the assessee in this regard. Payment of the taxes before issuance of show-cause notice by CIT (A) should be sufficient compliance of section 249(4) of the Act as held in CIT v. Rama Body Builders  250 ITR 825 (Del.) (HC).
F. Signatory to appeal memo
(20) As per Rule 45 of the Rules, the appeal must be signed and verified by the person who is authorized to sign the return under section 140 of the Act. An unsigned or unverified appeal is an invalid appealas per Damodar Prasad v. CIT  3 ITC 405 (Pat.) (HC). Similarly, an appeal signed and verified by an agent would also be an invalid appeal as per CAgIT v. Keshab Chandra Mandal (Sri)  18 ITR 569 (SC) and Naraindas Narsinghdas v. CIT  18 ITR 204 (All.). However, in the case of Sheonath Singh v. CIT  33 ITR 591 (Cal.), it was held that defect in signature of appellant on memorandum of appeal is not an illegality, but only an irregularity which does not affect jurisdiction of court to entertain the appeal.
(21) The following cases regarding maintainability of an appeal signed by an Advocate/ CA merit consideration:
– Pyrkes Wine Stores v. Fifth ITO  9 ITD 93 (Bom.): Though original memorandum of appeal was signed by assessee-firm’s authorised advocate, the amended memorandum was duly signed by the partner. Therefore, appeal should be admitted for consideration on merits.
– Mrs. Luiza Saldhana v. ITO  16 TTJ 243 (Bom.): Assessee’s appeal should not be dismissed on ground that it was signed by representative of assessee and not by assessee himself, without giving the assessee an opportunity to cure the defect.
G. e-filing of first appeals
(22) The CBDT has, vide press release dated 30th December, 2015, made filing of first appeals before the CIT (A) mandatory through electronic mode for persons who are required to file their returns of income electronically. This can be done through the portal www.incometaxindiaefiling.gov.in.
II. Once assessment order is passed – Law and procedure regarding stay of demand
(23) As per section 220 of the Act, any tax, interest etc. demanded as a consequence of an order passed under the Act is required to be paid within 30 days of service of notice of demand. Therefore, unless the demand is stayed, the demand has to be paid within that time notwithstanding an appeal has been filed by the assessee against the demand. The expression “stay of demand” is colloquially used for “treating the assessee as not in default”. The CBDT has directed AOs not to use the expression “stay of demand”. However, in this write up, it has been used considering the familiarity of the expression with everyone.
Gori Shankar Awasthi v. ITO & Ors.  78 ITR 784 (Cal.): Stay of realisation cannot be granted simply because an appeal has been preferred.
(24) Therefore, it is important for assessees to take steps to prevent any coercive methods from being taken by the Department to recover the outstanding dues.
A. Relevant Instructions on the subject
(25) As per Instruction No. 1914 dated 2-12-1993, AO’s must pass speaking orders disposing off applications for stay of demand. This view is also reiterated by the Bombay High Court in Tata Toyo Radiotors (P.) Ltd. v. UoI  209 Taxman 106 (Bom.) (MAG.) and KEC International Limited v. B. R. Balakrishnan & Ors.  251 ITR 158 (Bom.).
(26) As per Instruction No. 96 dated 21-8-1969, collection of the tax in dispute should be held in abeyance till the decision on the appeal in such a case. It is important to note that even though Instruction No. 1914 states that it has been issued in supersession of earlier instructions, Courts have taken a view that Instruction No. 96 has not been so superseded as held in Soul v. DCIT  323 ITR 305 (Del.) (HC) and N. Jegatheesan v. DCIT  64 taxmann.com 339 (Mad.).
B. Suggested contents of a stay application
(27) The following points must be kept in mind by assessees and incorporated in stay applications according to the facts and circumstances of the case:
(i) Assessment history of assessee;
(ii) Good conduct and cooperation of the assessee with the Department in the past including promptness in discharging tax liability;
(iii) Appeal filed with CIT (A) and points raised in the appeal – It would be a good practice to enclose a copy of the appeal memo filed before the CIT (A);
(iv) Description of financial difficulties, if any, and how genuine hardship and irreparable loss would be caused to the assessee if tax was to be recovered immediately;
(v) Case on merits of the assessee including reliance on judicial precedents, if any – It is important to note that even if there are no financial difficulties, stay can be granted if a strong prima facie case in merits is made out as held in the case of Benara Valves v. CCE  13 SCC 347 (SC)/ Slum Rehabilitation Authority v. DIT (E)  275 CTR 40 (Bom.)/ UTI Mutual Fund v. ITO  31 taxmann.com 222 (Bom.);
(vi) If the demand relates to issues that have been decided in assessee’s favour by an appellate authority or court earlier, the same should be pointed out. This is because stay ought to be granted in such cases as per Instruction No. 1914. Even if the earlier decision of the appellate authority or court is not in case of that assessee itself, stay can be granted if demand in dispute related to issues that had been decided in another assessee’s favour on same facts as held in the case of Kalapet Primary Agricultural Co-op. Credit Society Limited v. ITO  378 ITR 658 (Mad.). Therefore, if the assessee’s relies on a judgement in some other case, it must endeavour to demonstrate how the facts of that case were identical or similar to assessee’s facts;
(viii) The fact of income being determined at a substantially higher than the returned income should be expressly brought out, and reliance must be placed on Instruction No. 96 – Refer Valvoline Cummins Limited v. DCIT  171 Taxman 241 (Del.) (HC);
(ix) The relevant portion of the Instructions or judgements according to which a stay is deserved must be quoted in the stay application itself and a copy of the Instruction/ judgements must be enclosed;
(x) The assessee must check calculation of tax, interest and other liability raised by the AO, and any mistake in the same must be brought out in the stay application along with the amount of demand affected by such mistakes;
(xi) If there are any mistakes apparent from the record in the assessment order, the assessee must file a rectification application under section 154 of the Act to point them out. Also, a prayer must be made in the stay application to the effect that no coercive recovery measures may be taken till the disposal of the rectification application – Refer Sultan Leather Finishers (P.) Ltd. v. ACIT  191 ITR 179 (All.);
(xii) A prayer requesting an opportunity of being heard must be made in the end.
C. Stay application before CIT (A)
(28) It is now a settled principle that during the pendency of an appeal before the CIT (A), an application for stay can be filed before the CIT (A) – Refer GERA Realty Estates v. CIT (A)  368 ITR 366 (Bom.)/ Gujarat Vij Co. Limited v. ACIT  216 Taxman 48 (Guj.) (MAG)/ Maheshwari Agro Industries v. UoI  346 ITR 375 (Raj.). Therefore, instead of filing a stay application before the AO, an assessee can also directly file a stay application before the CIT (A) during the pendency of the appeal with the latter. The contents of the stay application whether filed before the AO or before the CIT (A) should remain the same.
(29) It is important to note the decision in the case of UTI Mutual Fund v. ITO  345 ITR 71 (Bom.), coercive measures for recovery should not be taken pending application for stay and for a reasonable period thereafter to enable assessee to move a higher forum. In case a stay application is filed before the CIT (A) and is pending before him, it is advisable for assessees to write a letter to the AO requesting that no coercive measures for recovery may be taken in light of this judgement.
(30) The opportunity to file a stay application must be used by assessees to bring on record all facts and material demonstrating how stay is deserved in the case. Also, since AOs are mandated to pass speaking orders on stay applications, it is imperative that assessees file comprehensive stay applications and cursory applications for stay of demand must be avoided.