Appealing an income tax matter at the Income Tax Appellate Tribunal (ITAT) generally follows the stages of registration/scrutiny, service of notice, preparing the paper book as a matter submission may be required on, and ultimately an appellate order of the tribunal after a hearing. Once Form 36, which is a prescribed form, is filed at ITAT to appeal against specified decisions under the Income-tax Act the above process starts.

Different ITAT Benches have different ways of doing business, one might take it slowly and others may work it off quickly. So if a case is complicated, the parties involved do not follow all procedural requirements, the matter is put off a number of times for no valid reason and/or the ITAT is really overloaded, the time taken could be significantly longer. An ITAT lawyer can guide you as to what needs to be filed, write your case, put together all evidence, go for your hearing in person and keep you out of trouble until the Tribunal finalizes its order.

Important: Form 36, in the context of appeals against specified orders of the Income-tax Act, means an appeal filed before the ITAT. You must, at a minimum, check what are the applicable provisions to be invoked for appeal, the limitation period for making the appeal, the filing requirements as well and the fees, for the particular case.

FAQs Relating to Form 36 and Appeals to ITAT

1. What is Form 36 under the Income-tax Act 1961?

Form 36 is a form to be filed for appeal purposes to ITAT in specified income tax matters.

2. What are the processes after the filing of Form 36?

It usually involves the checking of the filing and if nothing is wrong the matter is placed before the Bench.

.3 What is the time needed for one to conclude an appeal before ITAT?

A period of time that applies generally without exceptions for an ITAT appeal is the only thing that you have to look for here is the Bench. A Bench has the power to issue notices and orders to the parties that can also affect a case.

4. Can any representative of a taxpayer, i.e., a legal practitioner or a CA., a legal professional, be allowed to appear at a court proceedings before the ITAT?

Any authorized person with the consent of a legal practitioner such as CAs or legal professionals in accordance with the law will be able to represent a taxpayer in an ITAT hearing.

6. Should a physical copy of a book be given for each ITAT appeal?

This would depend on the matter and the applicable ITAT procedure. An advocate or a person representing the interested party should look into the procedural requirements and understand which documents can be filed and which need to be compiled at the time of submission.

What is the next when you submit Form 36?

Filing an appeal with Form 36 is an important move, and it certainly brings your challenge to the doorstep of the higher authority, but the story is not over till you win your appeal. There are some other stages (both procedural and substantive) following the filing of the appeal.

Stage 1: Filing and initial examination

On receipt of the appeal, the Registry shall, to the extent prescribed, examine the appeal as to whether it has been filled up according to all the requirements and the conditions are fulfilled.

This may involve, inter alia, verifying;

• Filings through Form 36 including details about the party making the appeal
• Receipt of Challan/Prescribed Appeal Fee
• Original/Photocopy of the Order appealed against
• Grounds of Appeal
• Signed documents in support
• Information regarding Authorship / Representation
• Limitation-related Information
• Requirements for filing

In the event of any defects being found, the same may need to be remedied under law.

Case Study: Appeal in Delhi ITAT

Imagine a company at Connaught Place, Delhi gets an adverse decision by the Commissioner (Appeals) on the issue of disputed addition. The company files Form 36 with the proper ITAT Bench.

Before a substantive hearing takes place, the filing might have to meet Registry’s requirements on procedure.

ITAT lawyers in Delhi, in the role of advocates or consultants, might help you go through the Registry’s objection(s) and procedural shortcommings.

Stage II: Registration of Appeal and Case Number

After an appeal has been filled and met the requirements, it will be processed and the case file no. will be allocated.

With the help of a digital dashboard, the Tribunal maintains a listing system and tracks the case according to their internal procedures.

Once the submission fulfills the required standards, the appeal will be handled and assigned an appropriate appeal number.

The taxpayer can track the development of the case online through the Tribunal’s procedure and listing interface.

the Appellant is required to maintain the complete record of the case at his/her/their disposal. It should contain the following (wherever applicable):

• Form 36;
• Grounds of appeal;
• Statements of facts;
• Copies of Impugned Orders;
• Copies of the Assessment Orders;
• Copies of Previous Submissions;
• Other evidence;
• Lecture notices;
• Appeal-fee records;
• Copies of the Authorization documents;

Organizing these files would save time when a taxpayer is preparing for the hearing of the appeal.

Step 3: Notice and Hearing Listing

At last, the case is referred before a relevant ITAT Bench.

Under general ITAT procedures, the Bench of the proceedings will include judicial and accountant members as required for the nature of the matter.

Though the Tribunal will provide notice of the intended hearing date, an immediate confirmation of the hearing date cannot be given. There may be a delay depending on the Tribunal’s schedule and work commitment.

As it is unpredictable, taxpayers should be careful not to think that filling out Form 36 necessarily means that the taxpayer’s case can be heard within a few weeks only as a matter of routine.

Step 4: Preparing the Paper Book and Written Submissions

Before the hearing, the Appellant and/or his/her advocate go through all the records from start to finish to ensure that nothing is overlooked or omitted in their paper book of argument.

According to the procedural requirements for a particular appeal, documents may be arranged into a ‘paper book’ or any other kind of book like this.

What can be found in a well-prepared paper book?

• relevant tax records (such as Assessments, Payments, etc.);
• a CIT(A) or a higher authority’s Order as well;
• settlement or agreement papers;
• inward or outward bills;
• bank transactions and statements;

Step 5: Hearing Before the ITAT

At the hearing, the Appellant or the Appellant’s Authorized Agent/Attorney presents the case.

The Hearing Procedure generally comprises the following:

• Establishing the grounds of appeal;
• Recounting the circumstances of the matter;
• Delivering legal points;
• Citing evidence in the record;
• Quoting judicial decisions (precedents) that are applicable;

Step 6: Adjournment or Additional Hearing

Hearing is the final step of the appeal process

Occasionally, parties may ask the bench to hold the matter over.

If, for some reason, a party cannot attend the hearing or file their reply or other documents that are necessary, the bench is bound to adjourn the case.

Unfortunately, too many adjournments may also lead to higher costs as the time of litigation is longer.

So it is the duty of your counsel not only to attend all the hearing dates but also to remember all the procedural directions.

Step 7: ITAT Order

Post consideration of the submissions from both sides and analysis of the documents, the Tribunal delivers an order.

It has the power either to

• To support the appeal
• To reject the appeal
• To partially approve the appeal
• To revert the matter to the first-level authority for fresh hearing
• To decide separate points differently;
• To take any further legal action

All these results are a matter of the presentation of facts, evidence, arguments, etc., before the law.

How Long Does an ITAT Appeal Take?

Different appeals can be disposed quickly, others might take longer. This all depends upon the specific matter under consideration.

A case of a regular nature can have a much faster pace, while the one involving various assessment years, an extensive evidence material submission, several disputed areas in law, and tax aspects.

Amongst the different features that influence ITAT appeal disposal timeline, one finds the following:

1. The work overload of a particular Bench

Benches have different caseloads; therefore, one can expect varying degrees of bench availability.

2. The depth of the dispute

Fewer efforts will be necessary in the case of just a tax calculation problem than, say, a corporate taxation matter.

3. Procedural errors

One of the possible sources of delay in a case is a procedural flaw, e.g. a late filing or not fully completing paperwork.

4. Additional hearings

The process can be stretched over a longer period by additional hearings

5. The number of grounds for an appeal

More issues will mean more arguments

6. Fresh submissions of evidence

These applications for submission of new evidence can mean more legal steps to be taken in this case.

Henceforth, it is a risky thing for a lawyer to give a guarantee for the final decision date for the ITAT matter.

How Much Does an ITAT Lawyer cost in India?

The actual cost of filing an appeal to the ITAT does not have a standard fee.

The cost generally covers:

• ITAT statutory filing fee, where applicable
• The lawyer’s professional fee
• Consultation charges
• Drafting charges
• Paper-book or documentary costs
• Appearance charges
• Charges of additional hearings
• Travel or incidental expenses, if applicable

A client’s professional legal fees could also depend on various factors including the tax involved, legal issues at stake, grounds of appeal, required documentation, number of hearings, and experience of the lawyer.

Example

A simple appeal regarding a single issue could be much quicker on the ground that such an appeal will take far more work compared to, say, filing a company’s appeal related to several previous years’ assessments with large volumes of evidence and lots of hearings).

Certainly before hiring an ITAT lawyer, you better make sure that the fee structure clearly lists out all the work and expenses. You may want the following items to be covered.

• Initial consultation
• Drafting
• Filing of documents assistance
• Fairness of the first hearing
• Further hearings
• Written submissions
• Paper-book preparation
• Potential additional proceedings

What to Give Your ITAT Lawyer, You Wonder?

Coping with the ITAT process and building an appeal on solid arguments and evidence depends upon the availability of documents that go beyond just getting the latest order. You have to hand in full papers and not only your latest one.

The lawyer may require various documents such as:

• Details of Form 36
• Assessment order
• CIT(A) order
• The notice served by the department
• Income-tax return
• Computation of income
• Other submissions
• Evidence provided during assessments
• Financial statements
• Bank statements
• Miscellaneous agreements and invoices
• Relevant correspondence
• Previous appellate decrees

With the aid of the lawyer, you can be sure that each document matches a ground of appeal.

Post Form 36 Services provided by ITAT Lawyers

To get rid of the burden of handling matters yourself, it is best that an expert ITAT lawyer can:

Re-check the case: This helps the lawyer see the story that will be told to the court as they will go back and forth between the assessment papers and the appellate records.

Governing laws: They need to be certain that the grounds have correctly portrayed the points of contention.

Paper-book: A good paper-book helps in keeping the judge focused and is therefore an essential part of any ITAT case.

Documentation:

What If You Are Not Satisfied With the ITAT Order?

There is no doubt that in most cases, the ITAT order marks the final settlement. However, it is important to understand that in some cases, one can proceed further to a High Court if there are issues of law that can be classified as “substantial questions of law”.

After reading about the statutory criteria in this regard, it becomes clear that only those who are affected by such “substantial questions of law” can raise further legal matters in the High Court after a refusal by the ITAT. In fact, only such litigants will be legally entitled to pursue higher courts.

Hence, before opting to approach a High Court with an appeal from the ITAT, one must first look at the ITAT order and see if the legal question involved is a substantial one.

Final Takeaway

Form 36 filing is just the first step of initiating an ITAT appeal, but it is not the last step. Once the form has been filed, the subject might be passed on for Registry scrutiny followed by registration and listing. Then comes the phase of pre-hearing procedures like preparation of documents followed by hearing and submissions (written and verbal) with the final delivery of an ITAT order.