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TMI BlogInstructions regarding Standard Operating Procedure on filing of appeals to High Court under section 260A and related mattersX X X X Extracts X X X X X X X X Extracts X X X X ..... 279/Misc.l42/2008-ITJ(Pt) dated 23-10-2008; Letter No. 279/Misc/142/2008 dated 19-11-2008 and Letter No. 279/Misc/M-29/2010-ITJ dated 31-8-2010, in particular, the following Instructions are issued herewith for compliance by all concerned: Responsibility for Filing of Appeal to High Court 3. Subject to the Instructions for the time being in force on the monetary limits for filing appeals issued by CBDT under section 268A, the jurisdictional CCIT shall be the authority to decide whether to contest an order of the ITAT, in the light of the facts and circumstances of a particular case and the statutory provisions. He shall take a view in the matter after taking into consideration the recommendations of the authorities below. Once the CCIT communicates his decision to contest a particular order of ITAT, it shall be the responsibility of the CIT to ensure timely and proper filing of appeal in the High Court and consequential follow up actions. Time Lines for Filing of Appeals in the High Court under section 260A of the Act 4. Time lines indicating clearly the responsibilities of each level involved in the process of filing appeal to High Court have been laid down in Annexure-I to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Whether it is an open question in the sense that the issue has not been settled by pronouncement of Supreme Court? d. Whether the issue is not free from difficulty? e. Whether it calls for a discussion for alternative views? iii. Perversity of facts also constitutes 'Substantial Question of Law' as it falls in (d) and (e) above. Hon'ble Supreme Court in Sudarshan Silk & Sarees v. CIT 300 ITR 205 has laid down the attributes of perversity by holding that an order or finding is perverse on facts if it falls under any of the following categories: (a) The finding is without any evidence. (b) The finding is contrary to the evidence. (c) There is no direct nexus between the conclusion of fact and primary fact upon which that conclusion is based? (d) When an authority draws a conclusion which cannot be drawn by any reasonable person or authority on the material and facts placed before it. 7. Proper Judicial Record Management System: (i) A proper judicial record management system is essential for meaningful conduct of litigation. The CIT has to, inter alia, ensure that once appeal to ITAT is authorized against the order of CIT(A), a separate judicial folder for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lines for typing of appeal papers etc. are enclosed as Annexure-III to this Instruction. However, the Standing Counsels representing the Department's case may be further consulted on procedural aspects, wherever considered necessary. Filing of Appeal and Subsequent Monitoring 9. The CIT should put in place proper mechanism with defined responsibility of different levels of officials to ensure that: (i) The appeal is filed in the registry of High Court within prescribed time limit as in Annexure-I. (ii) Diary Number / Lodging Number and ITA Number allotted by the registry is obtained and recorded in judicial folder in CIT's office as mentioned in check list / proforma for scrutiny report on ITAT order at Annexure-II. (iii) In case, the registry of the High court notifies any defect or office objection, immediate steps are taken to remove the same with the assistance of the filing Counsel and compliance is reported to him. (iv) One set of appeal memo is sent to the Assessing Officer for linking the same with the relevant assessment record. (v) In case, the assessee files counter affidavit, the appearing counsel makes available the same to the CIT/Assessing Officer to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictures etc. 13. Judgments of the High Court containing strictures or which are contrary to Board's orders, notifications, instructions, circulars etc. shall be brought to the notice of the Board (concerned division) immediately by the CCIT/DGIT under intimation to ITJ section of the Board. Assistance to Departmental Counsels 14. The CIT should ensure that whenever the Departmental Counsel seeks Instructions / clarifications in a case, the same are attended to by the officers concerned promptly. The counsel should be briefed properly to strengthen Revenue's case. The CIT should personally involve himself in cases involving intricate issues of facts / law having wide ramifications or involving high revenue stake. A copy of the scrutiny report for filing appeal to High Court should invariably be made available to the appearing counsel for his assistance in preparation of the case and arguments. 15. Monitoring Mechanism: i. The CCIT/ CIT shall ensure due adherence to this instruction. In order to facilitate monitoring, a Register shall be maintained in the office of CIT as per the format prescribed at Annexure-IV to this instruction. ii. Quarterly Report of appeals filed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 5 to 6 by Range Head. However the CIT may in his discretion, allow items in part 5 & 6 to be filled-in by Assessing Officer instead of Range Head if the circumstances so demand) u TO BE FILLED IN ALL THE CASES OF ORDERS OF ITAT 1. Particulars from the order under scrutiny S. No. Points Particulars i Name and address of the assessee ii PAN iii Assessment Year iv ITA No. and date of the order v Date of receipt of the order in the office of CIT vi Who was the Appellant (Please tick the applicable) (i) Department or (ii) Assessee or (iii) Both in cross appeal/ cross objections vii Date of giving appeal effect viii Overall Tax effect of the order u TO BE FILLED IN ONLY IN THE CASES OF ORDERS OF ITAT ADVERSE TO REVENUE 2. Information relevant to decision making for filing further appeal by the CIT, in whichever cases applicable i Whether it is combined order for more than one assessment years Yes /No ii If yes specify assessment years involved and identify specific issues related to different assessment years for filing separate appeals. Use Annexure, if required. iii Whether it is combined order for more than one assessee Yes/No iv If yes, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggregate tax effect in 3(ii) above is below the limit prescribed for filing of appeal in CBDT Instruction No. 3/2011? Whether the case falls in any of the exception laid down in the said Instruction? If so, specify clause No. ii Due date for submission of report to Range head (33 days from the date of receipt of ITAT order in CIT office) Submitted to the Addl./Jt. CIT, Range-……………,………………for kind consideration & further action. The assessment records in …….. volumes are also sent herewith. Date: Signature Place: Name & Designation of the A.O. 5. Scrutiny report on ITAT order to be prepared by Range Head A. If the tax effect in 4(i) above is below prescribed limit and case does not fall in any exception of Instruction No. 3/2011, detailed scrutiny may not be taken up and only general recommendation as to whether decision of ITAT is prima facie acceptable on merits or not, may be given. B. In cases other than at 'A' above, the Range head will cover following points, as may be applicable, on each issue where relief is allowed by ITAT, in his scrutiny report in a separate Annexure. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al decision as regards filing of appeal to High Court under section 260A of the IT Act. (i) The CCIT may approve or modify the 'Substantial Question of Law' proposed by the CIT or accept the order of High Court giving reasons. (ii) In case where CIT has not recommended filing of appeal and the CCIT is not in agreement with the CIT, he may record reasons for differing with the CIT and direct filing of appeal after drafting / indicating the 'Substantial Question of Law' involved. Note: While taking decision on filing of appeal where item (7)C above is applicable, the CCIT shall take steps to resolve the conflict, if any, in the stand taken by different CsIT on common issues. Date: Name & Signature Place: Chief Commissioner of Income-tax 9. Categorization of the final decision of the CCIT (to be recorded by CIT): A. The appeal is not to be filed (i) As the order is acceptable on merits, or (ii) Even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in CBDT Instruction No. 3 of 2011, B. Appeal is to be filed on the 'Substantial Question of Law' framed above (i) As th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly mentioned in appeal title in the memo of appeal. (iii) The relevant section under which appeal is filed should be mentioned in the title. Numbering of pages:- (i) The pages should be correctly numbered and no blanks should be left either in the pages or in the index. (ii) All pages should be initialled. Note of appearance:- The note of appearance must be dated by the counsel (the lawyer who files the Vakalatnama) Flagging of relevant papers:- (i) The proforma, synopsis, prayers, impugned orders and exhibits should be duly flagged. (ii) The prayer clause must be flagged. Other details:- (i) The synopsis should be complete and should contain a list of case laws relied upon. (ii) Details of disputed claim must be given in rupees. (iii) Valuation clause for Court fee payment to be written. (iv) Denomination of Court fee stamps to be given. (v) Confirmation of Court fee payment should be made. (vi) The original set should be carefully prepared and no part of duplicate sets should come into or be made a part of original sets. (vii) The paras in the appeal memo must be correctly numbered GUIDELINES FOR TYPING AND PREPARATION OF APPLICATION U/S 260A ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in CIT office Date of limitation Date of giving appeal effect Date of filing of appeal Diary/ lodging No. of appeal filed Delay in filing of appeal (in number of days) Annexure V QUARTERLY REPORT ON APPEALS TO HIGH COURT CCIT (CCA) Region : ……………………………….. Quarter & the year for which details are furnished : ……………………………….. Appeals before High Courts: Total no. of appeals filed before High Court during the Quarter as per Format-I Annexed. No. of appeals filed within statutory time limit No. of appeals filed with delay beyond 30 days as per Format-II Annexed. Format-I: Particulars of appeals filed during the quarter ending …………… Sl. No. Name of assessee A.Y. Date of order of Tribunal ITA No. Question of law raised Tax effect. (Rs. in lakhs) Provision of the Income-tax Act involved CCIT Region CIT Charge Format-II: Particulars of delayed appeals filed during the quarter ending ………… Sl. No. Name of assessee No. of days of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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