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Practical Guide To Appearing Before The Income-tax Appellate Tribunal

The Income Tax Appellate Tribunal, like any judicial body, has a number of procedural requirements that require to be complied with before an appeal can be heard. Unfortunately, several authorized representatives, though highly qualified CAs and Advocates, neglect to comply with the requirements with the result that their matters get adjourned and they waste their own time and that of the Bench and their clients incur unnecessary costs. To assist the Tribunal and the taxpayers in the cause of justice, the author, an eminent advocate, has prepared a comprehensive check-list of matters that need to be complied with. The author assures all taxpayers that if the check-list is religiously followed, they will have a smooth and pleasant experience before the Tribunal

The Income–tax Appellate Tribunal-Final fact finding authority—Members of the Bar and Bench are trustees-The onus is on them to preserve its dignity, sanctity and purity.


Members of the Tribunal must also bear in mind that in hearing the appeals they are not merely adjudicating on the issues before them but they are invariably deciding on the fortune of the assessee. While one wrong decision against an assessee may ruin his life and relegate him to the position of a pauper, the same against the Government may affect the coffers of the Government to an extent of a drop in an ocean

The role of the Bar in the administration of justice is no less than that of the Bench. It has therefore been rightly said that only a good Bar makes for a good Bench. Honourable Justice M. Srinivasan in Dayal Sons v. CIT (1998) 231 ITR 569 (H.P.) (HC) (571), observed that,

The profession of an advocate is a very noble profession and he is entrusted with a duty to be performed in the court. He is not only an agent of the client in one sense but also an officer of the Court. He has got three fold duties; one towards client; another towards the court and the third towards the opposing counsel.”

We desire that the representatives representing before the Income-tax Appellate Tribunal (the “Tribunal”) follow the following guidelines for better administration of justice before the Tribunal which will help the Bench and the Bar to save the time of the Court.

1. Before hearing of the appeal

1.1. Grounds of appeal

Rule 8 of the Income–tax (Appellate Tribunal) Rules, 1963 (the “ITAT Rules”), requires that every memorandum of appeal to be written in English and shall set forth, concisely and under distinct heads, the grounds of appeal without any argument or narrative; and such grounds shall be numbered consecutively. If the grounds filed are not in accordance with the Rules, it is advisable that the revised grounds may be filed well in advance.

1.2. Person authorised to sign the appeal and the memorandum of cross objection

As per Rule 47 of the Income-tax Rules, 1962 (the “Rules”), an appeal under section 253(1), section 253(2) or cross objection under section 253(4) of the Income-tax Act, 1961 (the “Act”) to the Tribunal shall be signed by the person specified in sub–rule (2) of Rule 45 of the Rules. As per this Rule 45(2), the grounds of appeal and the form of verification shall be signed and verified by the person who is authorised to sign the return of income under section 140 of the Act, as applicable to the assessee. As per Rule 45(2) read with section 140, only the following persons are authorised to sign the appeal or cross objection:-

(a)Individual: By the Individual himself and if the individual is absent from India, by some person duly authorised by him in this behalf;

(b) Hindu Undivided Family: By the Karta and where the Karta is absent from India, by any other adult member of such family.

(c)Company: By the Managing Director or if there is no managing director, any director thereof.

(d) Firm: By the Managing Partner or if there is no managing partner, any partner thereof, not being a minor.

(e)Limited Liability Partnership: By the designated partner or where there is no designated partner as such, any partner thereof.

(f) Local Authority: By the principal officer thereof.

(g)Association of Persons: By any member of the association or the principal Officer thereof.

(h)Non–resident company: By the power of attorney holder.

(i)Government managed company: By the principal officer thereof.

(j) Political party: By the chief executive officer of such party.

1.3. Respondent in an appeal filed by assessee

As per Rule 13 of the ITAT Rules, in an appeal filed an assessee under section 253(1) of the Act, the Assessing Officer concerned shall be made a respondent to the appeal.

On many occasions, it is seen that the assessee writes the name of the Commissioner (Appeals) who has passed the impugned order, as respondent.

1.4. Additional grounds

Rule 11 of the ITAT Rules provide that the appellant shall not, except by the leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal.

Therefore, it is advisable for an assessee to make an application in writing containing the additional grounds, their necessity and reasons as to why it could not be filed earlier.

1.5. Supporting order appealed against on grounds decided against him

Rule 27 of the ITAT Rules provide that the respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him.

It is desirable to make an application in writing and duly served on the other side in support of the grounds decided against him.

1.6. Appeal of assessee and the department and cross objections for the same assessment year

In the case of CST v. Vijai Int. Udyog (1985) 152 ITR 111 (SC), the Supreme Court held that when the assessee and the department are in appeal against the same order, both the appeals must be clubbed together. Now a days, the assessee can find out from the website of the Tribunal – www.itat.nic.in, whether the Department is in appeal or not. If the application is made in advance the appeals can be kept for hearing together.

1.7. Enclosure along with appeal memo

When an appeal is filed against a Transfer Pricing adjustment, the assessee may have to file the impugned order of the Transfer Pricing Officer concerned.

When an appeal is filed against the order of the Commissioner under section 263 of the Act, the impugned order of the Commissioner must be enclosed with the appeal memo.

Also, when an appeal is preferred against order levying penalty, the order of Assessing Officer confirming the disallowance/ addition in the assessment proceedings must also be enclosed. This is also required by Rule 9(2)(i) of the ITAT Rules.

1.8. Defect memo and date of hearing

At present, in Mumbai, as soon as an appeal is filed, in the acknowledgment itself, the date of hearing is intimated and the defects, if any, are informed to the assessee or to the Department, as the case may be.

Some assessees are not aware about this new system and in many cases, do not make arrangements for being represented the matter on the appointed day, which often results in an ex parte order.

To avoid this situation, it is desired that the date of hearing may be noted and defects, if any, be rectified at the earliest. It may also be noted that when a particular bench is not functioning, the matters listed before that bench for that day are posted to a different date. However, as per the practice prevailing in Mumbai, no separate notice is issued for communicating such date. This date is notified on the notice board of the Tribunal and gets updated on the website of the Tribunal. Assessees and their representatives may visit this website or www.itat.nic.in and may take a note the next date of hearing.

1.9. Presentation of paper book

The Bar and the Bench are the part of same coin, both should have mutual respect and confidence in each other then only they can play a proactive role to retain its distinction as one of the finest institutions in this country and a model for other institutions to follow

Rule 18 of the ITAT Rules deals with the requirements that a paper book must comply with. If the appellant or the respondent, as the case may be, proposes to refer or rely upon any document or statements or other papers on the file of or referred to in the assessment or appellate orders, he may submit a paper book in duplicate containing such papers duly indexed and paged, at least a day before the date of hearing of the appeal along with proof of service of a copy of the same on other side at least a week before.

It is required that the papers enclosed in the paper book must be legibly written or type written in double space or printed. If a xerox copy of a document is filed, then the same should be legible. Each paper should be certified as a true copy by the party filing the same, or his authorised representative and indexed in such manner as to give the brief description or the relevance of the document with page numbers and the Authority before whom it was filed.

Additional evidence (i.e. a document which was not filed before the lower authorities in course of the proceedings), if any, must not form part of the same paper book. If any party desires to file additional evidence, then the same must be filed by way of a separate paper book adhering to the aforementioned requirements, accompanied by an application stating the reasons for filing such additional evidence.

If paper book contains a document in any local language, the parties concerned may have to file the translated certified copy in English.

It is also important that the paper book must be serially and consecutively numbered.

As regards the case laws which are not reported in ITR or ITD, it may be desirable to file a true copy of the same duly certified by the assessee or his authorised representative.

The assessee must take due care while certifying the paper book. If the certificate is proved to be incorrect or wrong, the person who has given the certificate may be held responsible.

The parties shall not be entitled to submit any supplementary paper book, except with the leave of the Bench.

1.10. Delay in filing of appeal

If there is delay in filing the appeal by the assessee, he may have to move a condonation application duly supported by an affidavit at the time of filing the appeal itself. The affidavit must be sworn before the competent authority and must be in the prescribed manner.

1.11. Change of address – Revised Form No. 36

As per Rule 9A of the ITAT Rules, in the event of change in address of the parties to the appeal, the appellant should file a duly verified revised Form No. 36.

1.12. Bringing the legal heirs on record

As per Rule 26 of the ITAT Rules, where an assessee, whether an appellant or a respondent to an appeal, dies, the legal heirs may have to file a duly verified revised Form No. 36.The copy of death certificate along with an affidavit also requires to be fled.

1.13. Change of name and merger

When there is change in name or merger (in case of non-individual assessees), it is the responsibility of the assessee to inform the concerned authority and make an application to make necessary changes by filing a revised Form No. 36 duly verified as per Rule 47 of the Rules.

2. At the time of hearing

2.1. Dress regulation

Rule 17A of the ITAT Rules prescribes the dress regulation for the authorised representative of the parties (other than a relative or regular employee of the assessee.) The prescribed dress regulation is as follows:

In the case of male representatives, a suit with a tie or buttoned-up coat over a pant or national dress, i.e. a long buttoned-up coat or dhoti or churidar pyjama. The colour of coat must, preferably, be black.

In the case of female representatives, black coat over white or any other sober coloured saree.
However, Lawyers and Chartered Accountants may, at their option, appear in the dress, if any, prescribed.

2.2. Vakalantnama i.e. the Authority letter.(Mukhtarnama or Waklatnama)

An advocate who represents a matter before the Tribunal should file the Vakalatnama affixing proper court fee(welfare stamps) as per the relevant State law. In Maharashtra, as per The Bombay Court Fees Act, 1959 ,Schedule II, Clause 12. the proper court fee is Rs. 10. (If he is a member of a welfare scheme, additional welfare stamp of Rs. 2 must be affixed.)There are certain restrictions on Senior Advocates i.e. advocates who are designated as Senior Advocates by the Supreme Court or by any High Court under the Bar Council of India Rulesread with section 30 of the Advocates Act, 1961. Section 30 of the Advocates Act, 1961 reads as follows: (a) A senior advocate shall not file a vakalatnama or act in any court or Tribunal or before any person or other authority mentioned in section 30 of the Act. Such Senior Advocate is also not permitted to appear without a junior advocate in the Tribunal (or in any court of India). Other representatives must furnish a Power of Attorney on a non-judicial stamp paper of value specified under the relevant State Stamp law. In Maharashtra, as per article 48(a), this value is Rs. 100 for a special power of attorney and Rs. 500 in all other cases.

2.3. No objection

If any representative has filed his Vakalatnama or authority letter either at the time of filing an appeal or at the time of hearing but is not appearing in the matter, the representative actually appearing in the matter before the Tribunal must obtain a no-objection from such first mentioned representative before representing in the matter. In case the person who has filed the Vakalatnama/ Authority letter is briefing an appearing counsel and is appearing along with such counsel, then a no-objection is not required.

2.4. Representation

Section 288(2) of the Act defines the term “authorised representative” i.e. the persons who are eligible to appear before the Tribunal.

It may be appreciated that appearance before the Tribunal even for seeking an adjournment, is representation and only the persons authorised to appear as such can seek an adjournment on behalf of the assessee. It may be noted that article clerks or other staff employed by professionals are not competent to appear in this behalf in the absence of necessary authorisation.

2.5. Adjournments

It is desirable that the adjournment applications may be filed in advance wherever possible and a copy of the same may be forwarded to the concerned representative of the other party.

3. General

3.1. Code of ethics

The ITAT Bar Association, Mumbai (the “ITAT Bar”) and the All India Federation of Tax Practitioners (“AIFTP”) have adopted a code of ethics for its members (www.itatonline.org /www.aiftponline.org / AIFTP Journal May’ 2002 P. 14) It is desired that the professionals who represent matters before the Tribunal are requested to follow this code and make a sincere attempt to preserve the dignity, sanctity and purity of the Tribunal. The ITAT Bar also has an ethics committee chaired by eminent professionals. Professionals or even assessee may bring to its notice, any unethical practice adopted by professional in course of his/ her appearance before the Tribunal. The Committee will recommend appropriate action if the professionals found to be guilty.

The suggestions made by the Registrar for guidance of assessee and their representatives – reported in (1951) 20 ITR 49(St.) – may also be considered.

3.2. Members of the Tribunal

Members of the Tribunal must also bear in mind that in hearing the appeals they are not merely adjudicating on the issues before them but they are invariably deciding on the fortune of the assessee. While one wrong decision against an assessee may ruin his life and relegate him to the position of a pauper, the same against the Government may affect the coffers of the Government to an extent of a drop in an ocean. Hence, the Tribunal has a greater responsibility to the taxpayers of our country. For over seven decades, the Tribunal has proved that aggrieved assessee do get the deserved justice from the final fact finding authority.

3.3. A partnership among equals

The Bar and the Bench are the part of same coin, both should have mutual respect and confidence in each other then only they can play a proactive role to retain its distinction as one of the finest institutions in this country and a model for other institutions to follow. We do hope that professionals who appear before the Tribunal make a sincere attempt to follow the ITAT Rules which will help this Institution in better administration of justice. Readers may send their objective suggestions on law and procedure for better administration of justice before the Tribunal to the office of the AIFTP addressed to the Chairman ITAT Bar Association’s co-ordination committee or send email to, afitp@vsnl.com for taking up the issues with appropriate authority.

Jai hind

ksa_sign
Dr. K. Shivaram

Editor-in-Chief, AIFTP Journal

Reproduced with permission from the AIFTP Journal, August 2013

24 comments on “Practical Guide To Appearing Before The Income-tax Appellate Tribunal
  1. Adv. MORH MUKUT YADAV says:

    Dear Sir,
    I am searching a senior Advocate or ca for learn ITAT CASES.

    Advocate Morh Mukut Yadav
    9873119377, 8299075384

  2. Adv. G. M. Swami, Udgir says:

    The best article for all practitioner most concise but informative a practical article very helpful for procedural matter.

  3. ADV. M. SWAMI says:

    Many Thanks for the best article on the practical aspects of appeals to ITAT. The most concise but informative a practical article very helpful for practitioners in procedural matters.

  4. Thank you very much Sir for this informative & useful article. This educates the young CAs desirious to appear before the authorities to do their home-work at length well in advance. That will save lot of time & cost of everyone & will help to get timely justice for their clients. Thanks a lot.

  5. Dear Sir,

    Given write-up is really beautiful, but when I seen your signature below Jai Hind I surprised as this signature can be copied and pasted. Now a days digital crimes or cyber crimes are at highest and signature can be misused. Therefore, my personal suggestion and appeal to all dear members is not to use signatures on public portal or if at all we need to use, please ensure that it can not be copied and pasted.

  6. thanks fordr shiaram’sgood piece of guidelines ashe had well written the guideliness in the best possible simple english every one can follow provided he knows some english.

    After 1963 of Ridge v Baldwin case in 1QB 539AT 578 TRIED TO SORT OUT THE CONFUSIONCAUSED BY THE ARTIFICIAL USE OF THE WORD ‘JUDICIAL’ to describe functions which were in reality ADMINISTRATIVE (IN CHARACTER) ,
    IT DID NOT eliminate themisnomer fromthe law;

    A means of doing so, however, appeared in the later line of cases which laid down ‘that powers of purely Administrative character MUST BE EXERCIZED ‘FAIRLY’ meaning in accordance with Natural Justice – which AFTER ALL IS ‘ONLY FAIR PLAY IN ACTION’;

    NATURAL JUSTICE (A MOST MISUNDERSTOOD WORD BY ALMOST ALL ADMINISTRATORS EVERYWHERE…AS THEY PRESSUME THEY ARE LAW UNTO THEMSELVES T HAT EGOTIST APPROACH AFFECTS BOTH THE ADMINSISTRATOR AND ADMINISTERED) IS but FAIRNESS WRIT LARGE and judicially;

    Administrative power must be exercised in proper understanding of the term and doctrine of NATURAL JSTICE;

    INDEED A OT OF REVENUE MEN AND THEIR SUPPORTING PANELS MAY NOT LIKE MY OBSERVATION BUT SOMETIME OR OTER ONE NEED TO SAY IN CLEAR TERMS IN THESE WORTHIES OWN INTEREST;

    LIFE IS LIKE THAT!

  7. Proof of the pdding is in the eating…why assesses prefer appearing themselves that speaks volumes on CAs and advocates in tribunals…further asseesses are gentlemen do not wash dirty linen may be.
    and
    All revenue men are some class of administrators as public servants but they understand least of what is the role of a public servant is?

    They oflate say about a decade and a half started assuming themselves as some learned judgesthat is the problem of ills today;

    For example when AO loses consciously or otherwise to understand what is his limitation jurisdiction and then what is the jurisdiction he gets on given case before himper se his controlling sections of the Act besides mandatory guidelinesof CBDT and ITAT on CASS cases, what he does is just arbitrary action to meaninglessly terrorize the taxpaper for whatever reasons – when AO loses per limitation jurisdiction on a return meaning Bad in law actionby AOhow come he resorts to sec 144 summary jurisdiction and worse still he uses sec 271(1)(s) penalty when all such work is VOID basically as the first action itself is VOID, INVALID…AND that way makes himself a big joker before the taxpayer, that means, he lost credibility as a public servant s first to be understood,still worse his supervicing offers also when support such illegal actions what do they qualify as PUBLIC SERVANTS is to be noted .

    Worse still their panel advocates, i am told bullied by these worthies to fight their illegal cases that means ;

    1. LOSS OF REVENUE TO EXCHEQUER – I. LOSS OF EXECUTIVE TIME TO THE GOVERNMENT; 2. FEES PAID TO PANEL OF CAs OR ADVOCATES OF ALL LEVELS ; 3 LOSSOFTAX PAYERS EXECUTIVE TIME;.4. UNNECESARY TRAUMA AS HIS ADVOCATES OR CAs ALSO EARN AT HIS COST BESIMPLY POSTPONING MATTERS FOR YEARS JUST THINKING TAXPAYER IS MICHING COW; 5 VERY HIGH FEES HEHAS TO PAY; 6. MENTAL AGONY TO HIM AS HE ISNOT WELL VERSED WITH LAW CONCERNED; 7. HE IS GUIDED BY SIMILAR CAs OR ADVOCATES; WHAT KIND OF ECONOMIC DEVELOPMENT NATIONAL ECONOMY CAN REALLY GET IS ANYBODY’S GUESS:

    All these happen when public servants become irresponsible ; thatway Egypt had riots and every knows what happened so too in Libya…

    Unless governess is really tight on these worthies, anything can happen to the indian democracy;

    so better public servants desist these kind of arbitary practices for their own good if not for taxpayer!

  8. v.sridhar says:

    This article is written in a manner where step by step progress is very well articulated..Any professional desirous of entering the
    arena would clearly emerge victorious , which is for sure.

  9. Good Article indeed. And at a time when a controversy is there whether CA / CS and all are allowed to represent clients before tribunals.

  10. ca nitesh bindal says:

    thanks for your suggestion

  11. indeed this is second read of yr suggestion. thanks. i am ave 74 and disabled so my moves may be restricted; so advance read of proper procedure is good protection, as i do in hon HC and SC. good advisory by you!

  12. CA.Sachin Agarwal says:

    Above all, whatever cost to the Government, Appellate Authorities & ITAT should present in all districts, then only the real and natural justice will be available to people. And why all these intricacies as discussed above. Justice dies at the AO level itself. Who will travel 100-200 Kms for First Appeal and 1000 Kms for Second Appeal, let’s compromise.

  13. Meri Pustak says:

    Thanks for such a useful Information. Many books about taxation is available to buuy online at Meripustak.com

  14. CA Suniiel R Karbhari says:

    Many Thanks for the Most Concise but Informative and practical article,a great help indeed ,to all those who aspire for practicing at ITAT and the Initiative taken.

    As appealed ,given herewith on following lines , Some of the suggestions on Infrastructure, the procedural matters, etc based on my limited knowledge and the experience at ITAT.

    1. The Clear and efficient Sound System , with Digital Collar Mikes to Members , for the Appellants and the Respondents , desired, in side the Court Room, to have clarity of conversation ,because being Open Court, members of the Public also can hear clearly , the contents and the arguments of the proceedings .

    2. Lot of noise is created because of physical movement of Chairs when the appellant/respondent stands up and seats down during the course of hearings ,which disturbs the members and the environment.

    3. Generator Back Up for the Court Room is a must, to have un interrupted power supply and the AC.

    4. To have noiseless environment of the court room, running of fans must be avoided and be replaced with ACs.

    5. The routine procedural matters , which are not covered under the ITAT Rules/Manual , such as Manner of conduct of the Proceedings , Order of the proceedings ,the gaps between the two sessions etc, What matters are heard or taken up first etc , the Protocol of the proceedings –who has to start first ,etc ,need to be placed on notice board or a book let ,should be made available at ITAT ,especially for new members /New appellants/Respondents.

    6. In general , when no papers/files are brought by DR , then the same needs to be informed before hand to the Registrar ,to save precious time of the members and AR .

    7. The hearing details , such as dates, timings etc ,need to be placed on the Website of jurisdictional ITAT Bench .

    8. The ITAT Staff needs to be more well tuned about their Nobel duty ,in the process of imparting justice to all and should be trained to execute their duties, without any favours.

    Thanks again.

  15. A.P.Shrivastava says:

    wonderful article.The Tribunals are functioning fine. I may however like to add that tribunal should not rely on any judgment not quoted by either party, should not permit change of lawyer unless consent is filed by old lawyer. one db should follow judgment of another db. in case of disaggreement matter should be referred to bigger bench. no document other the one filed as paper book should be allowed to rely.no argument other than pleading should be entertained. code of conduct should be followed by every one.

  16. PRADEEP MEHROTRA,ADV. says:

    Congrats. for nice & good attempt,keep it up in future as well. Very useful for youngesters to prepare themselves for appearance before ITAT.

  17. NAVEEN KUMAR GOYAL says:

    Thankyou very much sir for this very important, ethical and time saving guidance

  18. Adv kumar Uttam says:

    very good and useful guide

    i am so thankful to you sir.

  19. N. Devanthan says:

    It is also advisable to go through ITAT office manual regarding procedures followed by them

  20. ashwin k shah says:

    Very useful guide.

    Even to Sr. C.A. who

    has no day to day touch with all Direction

    of I.T. & Legal Dept .

  21. CA Niraj Mahajan says:

    Indeed very useful insight and practical. Very beneficial for amateur practitioners like me. Thanks a tonne for sharing this.

  22. CA Vinod Agarrwal says:

    The write up is very informative and helpful.

  23. Sir, Indeed very happy to read the procedure to be followed before ITAT. wE WILL HAVE TO SEE HOW THIS PROCEDURE WORKS HOLISTICALLY FOR SOMETIME THEN ONLY CORRECTIVES CAN SENSIBLY SURFACE AS each court or tribunal is indeed an entity to adjudicate things. I am glad to note the para members of honorable tribunal need to note if they make any haphazrd decision that may ruin the tax payer and loss to Revenue is just a drop in the ocean that need to be very closely understood by members is indeed most vital factor.
    Again respondents mostly the AO and not CAT(A) THAT NEED BE NOTED BY ASSESSES WHEN MOVING THE ITAT, a vital factor indeed.
    i would like to add even CIT(A) SHOULD ENSURE THE revenue SIDE NEED BE PRESENT WHEN IT ADJUDICATES THAT NEED BE MADE MANDATORY AS TAX PAYER WILL HAVE REAL OPPORTUNITY TO CROSS EXAMINE THE AO. Else adjudicatory order is indeed some kind of incipient one that unnecessarily prolongs a meaningful decision.
    That way unnecessary appeals to ITAT can be avoided and lessen the unnecessary load on tribunal i believe, thanks

  24. Atul T Suraiya says:

    Thank you very much for posting such a concise and comprehensive article on the practical aspects of appeals before the Hon. Tribunal. It is an excellent guide and would recommend the same to all practitioners, whether young or old, senior or junior, to go through the instrospect, for adherance.

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