ITAT- practical aspect: Apply for grounds of appeal of Revenue, if not received with notice of filing of appeal/ first notice for hearing of appeal, as the case may be.

[CA DEV KUMAR KOTHARI]

Notice for hearing of appeal:

As per Rule 19 of ITAT Rules, date and place of hearing of appeal is to be notified to the parties - the appellant (s) and respondent (s) both/ all. (Let us say first notice about filing of appeal to parties)

In addition, the registry office of ITAT is expected to send to the Respondent, along with intimation of filing of such appeal the memo of appeal which includes Form 36 , grounds of appeal, and other documents accompanying the appeal memo and notice for hearing of appeal, if a date has been fixed for hearing.

In practice, in case of departmental appeals, we find that along with notice for filing of appeal, only memo of appeal and grounds of appeal are sent by Registry office to the Respondent/ assesse along with notice fixing hearing of appeal for the first time. Sometimes, intimation of filing of appeal is sent without notification about date of hearing when no date is fixed.

Filing of Cross Objections:

As per Section 253(4) of IT Act, on receipt of notice of filing of an appeal, the respondent can file a memorandum of cross- objections within 30 days from the date of service of notice of filing of appeal.

The service of filing of appeal along with grounds of appeal upon the respondent is important. The respondent has privilege and right to file an appeal by way of Cross Objections in which the Cross Objector can prefer grounds to support the order of CIT(A) on issues decided in favor of  cross objector and can also prefer grounds of appeal for seeking further , additional or alternate relief etc. even if an appeal has not been filed by cross objector against the order of CIT(A).

Therefore, when an appeal is filed by Revenue, the assesse can prefer appeal by way of Cross Objections (CO)  before the Tribunal. For filing of such CO, any appeal fees is not levied. The assesse can take grounds to support order of CIT(A) on issues decided in favor of assesse and can also take other grounds to seek further, additional or alternate relief etc.

Complete service is important:

To enable the assesse to prefer Cross Objections it is necessary that Registry office of ITAT serves complete documents of appeal filed by the Revenue. The assesse must get at least intimation about delay in filing of appeal by revenue, and application for condonation of delay filed by revenue, so that he can raise an objection for granting of condonation of delay, grounds of appeal preferred by revenue, so that assesse  can file Cross Objections and also written submissions and paper book before the tribunal well before the date of hearing, if fixed. 

When grounds of appeal are not provided with intimation/ notice:

Many times it is experienced that along with intimation of filing of appeal or such intimation with notice for the first date of hearing, as the case may be grounds of appeal preferred by revenue are not provided. In such circumstances, the service of notice of filing of appeal is not complete. 

Therefore, the assesse should immediately apply for copy of grounds of appeal and should also mention that the notice will be complete only when grounds of appeal are provided for taking further steps like filing of CO. A mention in this regard in letter/ application for grounds of appeal,  will be useful in determination of limitation for filing of CO.

In case assesse delay in filing of such application for grounds of appeal, the period of loss can be considered for reduced period of limitation of period allowed for filing of CO (which is 30 days from date of service of intimation of filing of appeal).

On receipt of copy of grounds of appeal, the date of receipt and evidence for date of service should be kept so that these can be shown if a dispute is raised about service of notice and period of limitation.

After receipt of copy of grounds of appeal in appeal of revenue, CO should be filed as soon as possible. In covering letter and in form 36A, in row no. 5 date of  receipt of notice of appeal filed by  the appellant to the Tribunal should also be clarified. For example:

{5. Date of  receipt of notice of appeal filed by  the appellant to the Tribunal: 28.09.18**

              **   Clarified as follows:        

• Date of receipt of intimation without grounds of appeal 01.01.2018
• Date of receipt of grounds of appeal 28.09.2018

Draft / specimen letter

A Draft/ specimen application for copy of grounds of appeal taken by  revenue and other accompanying documents filed by revenue is appended. This can be modified suitably by fill in of gaps, striking out inapplicable items like from I / We

FROM – ASSESSEE ON LETTER HEAD GIVING NAME, ADDRESS, PAN AS PER PAN RECORDS ( also  other address , if any for  communication purposes)

To

The Registrar / Deputy Registrar, ITAT,  …… 

……..

India.

Sir,

Reg: Departmental appeal no. ITA…../ …. for Asst. Year          fixed for hearing on …   2018.  Before honorable “ …” Bench.

 

               ….Appellant                                 Vs.  …… Respondent.           

I/ We have received on     .09.2018  ,notice for date of hearing of above appeal of Revenue , filed by my/ our AO.  However with the notice I/  we did not receive grounds of appeal and other accompanying documents, if any, filed by the Department/ Appellant.

Kindly provide me/  us copy of memo of appeal (form 36)  grounds of appeal and other  documents, if any, filed by appellant/ AO.  This is required for:

• Review of matter and in case of need to file appeal by way of Cross Objections to seek further relief and to support order of Ld. CIT(A) ,
• Prepare for written submissions, paper book, index, certificate, authorization etc. for filing the same well before date of hearing.

Therefore, kindly consider this matter most urgent.

In above circumstances, I/ we understand that the limitation for filing of Cross Objection shall start from the date when I/ we receive copy of grounds of appeal of revenue, as the service of notice shall be completed on such receipt.

Thanking you,

Yours faithfully,

Name     

Assesse/ Respondent.

Discussions to this article

[DR.MARIAPPAN GOVINDARAJAN]

Very informative article and practical oriented.