TaxTMI 
TaxTMI 
Instructions regarding Standard Operating Procedure on filing of appeals to High Court under section 260A and related matters
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....; Letter No. 272/77/2007-ITJ dated 24-9-2008; Letter No. 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 fi....
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.... has laid down the following tests to determine whether a 'substantial question of law' is involved: a. Whether the issue directly or indirectly affects substantial rights of the parties? b. Whether the question is of general public importance? 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 primar....
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....ually filed; (ii) Necessary particulars including the correct PAN and CIT charge is mentioned; (iii) All annexures including copies of orders of authorities below are properly typed as per High Court Rules to avoid defect/office objections. (iv) In case, any document like agreement, depositions etc. crucial to the issue involved and considered by lower authorities, a copy of the same must be referred to at relevant place in appeal memo and its copy annexed thereto. An illustrative list of precautions to be taken to avoid defective appeals/objections being raised in filing appeals to High Court and guidelines 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....
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....ately for guidance/ Instructions in case any difficulty is experienced in exercising these powers. In Writ matters against orders under section 119(2) of the IT Act, 1961 etc, appropriate instructions may be obtained from the concerned division of the Board under intimation to ITJ section. Compliance of High Court Directions 12. The CIT shall personally ensure compliance of directions of the High Court like Dasti service, filing of counter or rejoinder affidavit or other specific directions within time frame to avoid adverse observations. There should be close co-ordination between field officers and Standing Counsels in the High Court so that directions are communicated in time and proper compliance is made to the satisfaction of the Court. Judgments of High Court containing strictures 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 Coun....
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.... 7 Decision of the CCIT on recommendations of CIT 7 days 75 days 8 Sending appeal folder to the standing counsel for drafting appeal memo by CIT 2 days 77 days 9 Drafting of Appeal memorandum by the counsel 20 days 97 days 10 Obtaining Appeal Memorandum from Counsel, Vetting, preparation of sets with annexures in the o/o CIT and sending to the standing counsel for filing 15days 112 days 11 Actual filing in the HC registry 3 days 115 days 12 Intimation of Diary/ Lodging No to the O/o CIT/ CIT(J) / HC cell 3 days 118 days *The CIT shall monitor separately the appeal effect in cases where some issues have been set-aside/remanded back by ITAT to the Assessing Officer. Annexure II Proforma for 'Scrutiny Report' on ITAT's order Limitation to file appeal under section 260A expires on:.......................... (Parts 1 to 4 are to be filled-in by the Assessing Officer and 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.....
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....er any factual finding given by ITAT is contrary to material on record? If yes, specify in detail indicating specific para of order under scrutiny & material on record contradicting such a finding. iv* Whether similar issue involved in the case of assessee in earlier year? If yes, then mention the year and present status of appeal. v If same issue is involved in subsequent years in the case of assessee, stand taken by the Assessing Officer/status of appeal, if any. vi Has ITAT relied upon any judicial decision? If yes, has a copy been annexed or citation given in case of reported decisions? (Note: Whether the relied upon decision has been challenged in further appeal? If so, the present status may be given.) Yes/No/Not applicable vii Whether the issue arises out of audit objection? Y/N viii If yes, whether audit objection is included in Draft Para? Also state whether Audit objection has been accepted by the department or not. ix Is any prosecution proceeding pending or contemplated in the case on the issue on which the appeal is sought to be filed? *Item ....
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....l Summary of report Appeal is recommended on issues No. ......., ......., & ......., Aggregate tax effect on issues on which appeal is recommended Due date for submission of report in CIT office (48 days from the date of receipt of ITAT order in CIT office) Submitted to the CIT,.............., ..................for kind consideration & further action. Date: Signature of the Range head Place: Name & Designation 7. Recommendation of the CIT on the scrutiny report: A. Issue wise recommendation of the CIT, as to whether decision of ITAT is acceptable or not, may be recorded with reasons: Issue (a) Issue (b) .................... and so on Aggregate tax effect on issues proposed to be contested in the High Court If tax effect is below prescribed limit, and appeal is recommended in view of the exceptions in Instruction No. 3 of 2011 dated 9-2-2011, specify clause No. B. 'Substantial Question of Law' to be proposed to High Court, is to be framed in respect of the issues not accepted by....
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......... Annexure III ILLUSTRATIVE LIST OF PRECAUTIONS TO BE TAKEN TO AVOID DEFECTIVE APPEALS/OBJECTIONS BEING RAISED IN FILING THE APPEALS BEFORE THE HIGH COURT Dates:- (i) The dates should be written correctly and no blanks should be left. (ii) The relevant assessment year, dates of appellate orders along with ITA No. and the date of its receipt in the CIT's office should be mentioned. (iii) The date of order should be mentioned on the concerned exhibits. (iv) The dates of orders in the index, in averment of appeal and in exhibits should not mismatch. Exhibits:- (i) All exhibits should be marked in the margin on the left side in the Memo of Appeal, whenever an exhibit is introduced. (ii) All exhibits should be marked separately in the index along with dates. (iii) The exhibits should be clear and copies attached should be legible. (iv) Certified true copies of exhibits should bear the signature of the person making the averment of the correctness of the appeal filed. (v) There should be n....
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....e left and right side of the paper and at least one inch on the top and bottom of paper should be left. (iii) The pleadings to be filed in the High Court are stitched on the left side and proper space should be left for stitching, so that the typed matter should not get hidden inside the stitches. (iv) All the blanks regarding dates, names etc. should be filled in after minutely checking up the matter. No blanks should be left. (v) The signing officer should write at the end of each Exhibit- "True Copy" and put his signature and name below it. (vi) In all the exhibits, on the first page, the exhibit number should be written in good handwriting on the top right hand corner. (vii) In the body of the petition when an exhibit is first introduced, a clarification must follow as to what it is - e.g. " ........... hereto annexed and marked as 'Exhibit - A' being a copy of the order of the Assessing Officer...........". Therefore, the words "Exhibit - A" should be written on the left hand margin. At the end of each exhibit, the date of passing of the order (of the relevant exhibit) should be written. ....