The CBDT has issued a draft notification dated 13th June 2018 proposing amendments to the Form of appeal to the Appellate Tribunal (Form No.36) and Form of memorandum of cross-objections to the Appellate Tribunal (Form No.36A)
Ms. Arati Vissanji, President of the ITAT Bar Association, pointed out that the proposed Form 36 is comprehensive. She, however, cautioned that the restriction placed on the number of words in sr. no.14 of the proposed form may be difficult to comply with in all cases.
Mr. Y. P. Trivedi, Sr. Advocate, Former member of Parliament, welcomed the requirement in serial No. 11 of the proposed form to state the ‘Total amount payable in respect of disputed items’. He explained that this will help the legislature to know the amount of the quantum of the tax in dispute in litigation pending before the tribunal at any point of time.
Dr. K. Shivaram, Sr. Advocate, welcomed the requirement in serial number 14 with regard to stating the the statement of facts. He opined that this will help the Tribunal in deciding the matter and also it would assist the high court in ascertaining the facts of the case.
He also opined that the information stated in the new form would assist the Tribunal in digitalising its records.
He suggested that it is desirable if the relevant statutory provisions (sections) which are in dispute are also provided along with Grounds of Appeal at sr. No. 15.
A tabular chart setting out the proposed amendments is set out below.
All taxpayers and tax professionals are requested to give their comments and suggestions on the proposed amendments.
| Sr. no. in old form | Particulars | Old Form | Proposed Changes |
| 1 | same as sr. No. 6 in proposed form | The State in which the assessment was made | The State in which the order was made |
| 2 | An addition of sub-section is made in sr. no. 4(a) of proposed form. | Section under which the order appealed against was passed | Section and sub-section under which the order appealed against is passed |
| 3 | same as sr. no. 1 of proposed form | Assessment year in connection with which the appeal is preferred | Assessment year in connection with which the appeal is preferred |
| 3A | Same as sr. no. 2 of proposed form | Total income declared by the assessee for the assessment year referred to in item 3 | Total income declared by the assesse for the assessment year referred to in item 1 |
| 3B | Same as sr. no. 3 of proposed form | Total income as computed by the Assessing Officer for the assessment year referred to in item 3 | Total income as computed by the Assessing Officer for the assessment year referred to in item1 |
| 4 | Removed from the proposed form | The Assessing Officer passing the original order | – |
| 5 | Removed from the proposed form | Section of the Income-tax Act, 1961, under which the Assessing Officer passed the order | – |
| 6 | Removed from the proposed form | The Deputy Commissioner (Appeals) in respect of orders passed before the 1st day of October, 1998/Commissioner (Appeals) passing the order under section 154/250/271/271A/272A | – |
| 7 | Removed from the proposed form | The Deputy Commissioner or the Deputy Director in respect of orders passed before the 1st day of October, 1998, or the Joint Commissioner or the Joint Director passing the order under section 154/272A/274(2) | – |
| 8 | Removed from the proposed form | The Chief Commissioner or Director General or Director or Commissioner, passing the order under section 154(2)/250/263/271/271A/272A | – |
| 9 | Same as sr. no. 4(c) | Date of communication of the order appealed against | Date of service/communication of Order |
| 10 | Removed from the proposed form | Address to which notices may be sent to the appellant | – |
| 11 | Removed from the proposed form | Address to which notices may be sent to the respondent | – |
| 12 | Same as sr. no. 19 in proposed form | Relief claimed in appeal | Relief claimed in appeal |
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Additions made |
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For Appellant
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For Respondent
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| 4(b). Date of order appealed against | |||
| 5. Income-tax Authority passing the order appealed against | |||
| 7. Section and sub-section under which the appeal is preferred |
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| 8. If appeal relates to any assessment a. Amount of addition/disallowance made in the assessment b. Amount of addition/disallowance disputed in appeal c. Amount payable in respect of 8(b) |
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| 9. If appeal relates to any penalty a. Amount of penalty as per order b. Amount of penalty disputed in appeal c. Amount payable in respect of 9(b) |
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| 10. If appeal relates to a matter others than the matters referred to in item 8 and 9 a. Amount disputed in appeal b. Amount payable in respect of 10(a) |
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| 11. Total amount payable in respect of disputed items [8(c)+ 9(c) + 10(b)] | |||
| 12. Whether an appeal in relation to any other assessment year is pending in the case of the appellant with any bench of the Appellate Tribunal | |||
| 13. If reply to 12 is yes, then give following details a. Bench of Appellate Tribunal, with whom the appeal is pending b. Appeal No. and date of filing of appeal c. Assessment Year in connection with which the appeal has been preferred d. Income-tax Authority passing the order appealed against e. Section and sub-section, under which the order appealed against has been passed f. Date of such order |
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| 14. #Statement of Facts Facts of the case in brief (not exceeding 1000 words); List of documentary evidence relied upon |
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| 15. ## Grounds of Appeal (each ground not exceeding 100 words) 1. 2. 3. |
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| 16. Whether there is delay in filing appeal | |||
| 17. ###If reply to 16 is Yes, enter the grounds for condonation of delay (not exceeding 500 words) | |||
| 18. Details of Appeal Fees Paid BSR Code Date of payment Sl.No. Amount |
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Note : A major portion of the changes are seen to be similar to the contents of Form 35, which is the form for application to file an appeal before the Commissioner Appeals.
F.No.370142/8/2018-TPL
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
(TPL Division)
***
New Delhi, June 13, 2018Sub.: Draft notification proposing amendments in rule 47 of the Income- tax Rules, 1962, Form of appeal to the Appellate Tribunal (Form No.36) and Form of memorandum of cross-objections to the Appellate Tribunal (Form No.36A)- reg.
Section 253 of the Income-tax Act, 1961 (the Act) provides for filing of appeals to the Income Tax Appellate Tribunal (the Tribunal) in respect of the orders specified therein. Sub-rule (1) of rule 47 of the Income-tax Rules, 1962 (the Rules) inter alia provides that an appeal under sub-section (1) or sub-section (2) of section 253 to the Appellate Tribunal shall be made in Form No. 36. Further, sub-rule (2) of the said rule inter alia provides that a memorandum of cross-objections under sub-section (4) of section 253 to the Appellate Tribunal shall be made in Form No.36A.
2. Form No.36 (Form of Appeal to the Appellate Tribunal) was last amended vide IT (Fifteenth Amendment), Rules, 1993. Similarly, since its introduction, no amendment has been carried out in Form No.36A (Form of Memorandum of cross-objections to the Appellate Tribunal). The existing Form No.36 and Form No. 36A do not capture the data regarding amount disputed in pending appeals before ITAT. The information regarding the amount disputed in appeal is vital for designing the policy of the department for litigation management. Therefore, in order to capture the recent developments, it is imperative to rationalise these Forms, so as to make these forms descriptive and informative.
3. It may also be mentioned that sub-rule (1) and sub-rule (2) of rule 47 provide inter alia that where the appeal/memorandum of cross objection is made by the assesse, the form of appeal/ cross objection, the grounds of appeal/ cross objection and the form of verification appended thereto shall be signed by the person specified in sub-rule (2) of rule 45. In this regard, it may be mentioned that rule 45 has been substituted by IT (Third Amendment), Rules, 2016, w.e.f 1.3.2016. Therefore, consequential amendment in rule 47 is required to be carried out.
4. In view of the above, it is proposed that Income-tax Rules, 1962 may be amended to:-
(i) substitute reference of sub-rule (2) of rule 45 by sub-rule (3) of rule 45 in sub-rule (1) and sub-rule (2) of rule 47.(ii) substitute existing Form No.36 and Form No.36A with the new Forms, so as to capture inter alia details about appellant, respondent, pending appeals, amount disputed in appeal or cross-objections.
5. The draft proposal is as under:
“1. In the Income-tax Rules, 1962,:-
(i) in rule 47, in sub-rule (1) and sub-rule (2), for the words, brackets and figure “ sub-rule (2)”, the words, brackets and figure “sub-rule (3)” shall be substituted;
(ii) in Appendix II, :-
(a) for Form 36 and notes thereto, following shall be substituted, namely:-
‘Form No. 36
[See rule 47(1)]
Form of appeal to the Appellate Tribunal
the form must have space to quantif the relief claimed showing the original addition lee relief granted in appeal before CIT A to show the correct relief sought. Itat being second forum the need to know what happend in first appeal
Institution fee for filing appeal to ITAT is presently paid by paying challan ITNS 280 by filing in respective details like “Self Asst. Tax” and Sub-head “Others”. If the fee is not paid under these precise heads mentioned above, there is possibility that, appeal fee paid is also claimed as taxes paid. While the computer acknowledgement generated by some banks show the precise heads under which the appeal fee is paid, acknowledgement issued by SBI and nationalised banks do not contain the precise details. Some of the benches of ITAT are sensitive to this situation and are insisting for filing FORM 26AS or a certificate from Assessing Officer that it is paid under proper head. In some cases, there were mistakes in filling the challan and the assessee’s have to pay the appeal fee all over again.
To address the above issue it is desirable and inevitable to have a separate account for ITAT (common account for entire country) in which the appeal fee can be deposited and the acknowledgement generated be filed as proof at the time of filing appeal. Alternatively, a separate Form like Form 280, 281, 282 etc., can be created to avoid confusion.
Hope authorities will look into this
Institution fee for filing appeal to ITAT is presently paid by paying challan ITNS 280 by filing in respective details like “Self Asst. Tax” and Sub-head “Others”. If the fee is not paid under these precise heads mentioned above, there is possibility that, appeal fee paid is also claimed as taxes paid. While the computer acknowledgement generated by some banks show the precise heads under which the appeal fee is paid, acknowledgement issued by SBI and nationalised banks do not contain the precise details. Some of the benches of ITAT are sensitive to this situation and are insisting for filing FORM 26AS or a certificate from Assessing Officer that it is paid under proper head. In some cases, there were mistakes in filling the challan and the assessee’s have to pay the appeal fee all over again.
To address the above issue it is desirable and inevitable to have a separate account for ITAT (common account for entire country) in which the appeal fee can be deposited and the acknowledgement generated be filed as proof at the time of filing appeal. Alternatively, a separate Form like Form 280, 281, 282 etc., can be created to avoid confusion.
Hope authorities will look into this
Is Requirement of TAN going to serve any purpose?
This is with reference to modification made at S.No. 6 of the form. Presently there are number of officers at CIT/Pr.CIT level who may be having jurisdiction spanning across different states and with different benches of ITAT exercising jurisdiction. For example CIT (Exemption) Chandigarh has jurisdiction over NWR comprising number of states and three different ITAT benches at Delhi, Chandigarh and Amritsar. Will the appeal against the order of CIT (Exemption)Chandigarh lie only with ITAT Chandigarh as para 6 will only capture Chandigarh ?
Para 10 does not capture the situation where registration u/s 12AA is refused or similar actions by IT Authorities
Welcomeable act of the CBDT. Nothing is extraordinary or irrelavant. These are the basic requirement when an appeal filed in short brief before the ITAT. All these details may reduce the difficulty of finding of the appellant at the time of service of notice of hearing and also help the bench to understand the case in short summary. Restriction on words would also help the bench to understand the ground and objection of the appellant because in present there may be cases where the grounds of appeal written in a summary like submission or argument and the bench waste their time to understand the ground what the appellant want from the bench. I think it is a best proposal and should be implemented soon.
“Ek kadam suchita ki ore”