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Thursday, 2 February 2017

The Art of Drafting Submissions and Arguing Income Tax Appeals

In this article an attempt has been made to give a practical guide to the art of drafting submissions and arguing the income tax appeals before various income tax appellate fore like the Commissioner of Income Tax (Appeals) and Income Tax Appellate Tribunal (ITAT) so as to fine tune the income tax appeals. These guidelines are not exclusive or exhaustive, one may add to them by his experience and knowledge. These guidelines are based on experience and knowledge gained by the author over the years by preparing and arguing income tax appeals before CIT(A) and ITAT.

Guide rule no. 1:

First of all it is important for the professional to develop an interest and enthusiasm for the appeal which he is going to prepare and argue for his client whether it is before the first appellate authority i.e. CIT(A) or the second appellate authority i.e. before the ITAT. If he himself does not believe in success of the appeal the entire exercise and purpose of filing appeal may get defeated and this will also reflect in poor drafting or poor arguments before the appellate forum.

Guide rule no. 2:

It is imperative to be thorough with the case in hand, be it related to facts or law. One has to be absolutely sure and clear in his mind as to what sort of submissions were made before the assessing officer, which documents were filed before him, what were his objections, whether he considered those submissions and documentary evidence filed before him etc. This may be more possible if the person who is preparing the case was associated with assessment proceedings.

Guide rule no. 3:

Collect all documentary evidence relating to appeal on which you would want to rely at once place. See whether these documents were filed before the AO at the assessment stage or not. If not then you may have to file an application for additional evidence. Prepare a paper book of documents relied upon. Give index and page numbering to paper book.

Guide rule no. 4:

While drafting take each ground one by one. Before starting drafting have a thorough reading of assessment order to get a grasp of the case and grounds made therein. If necessary, jot down the points which come in your mind while going through the assessment order and grounds of appeal.

Guide rule no. 5:

Divide your drafting in three parts:

Facts in brief: Here, narrate brief facts of the case under appeal relating to each ground separately. This will give an idea to the appellate authority of the matter and the proceedings that has already taken place.

AO’s arguments: Here narrate in brief AO’s major arguments relating to each ground /addition. Preferably use points or bullets as it gives a birds eye view, looks pleasing and facilitates easy understanding. Do not use lengthy paragraphs and also do not commit mistake of repeating the whole assessment order.

Submissions: this is the most important part. Draft submissions carefully by stating your arguments one by one. Divide the whole submissions in short paragraphs and also refer to documentary evidences filed separately in paper book wherever necessary with page numbers. Put your best arguments/plea first. Depending upon the issue in hand, you may have to decide which would come first, fact or law. In other words if you feel that the issue in hand is more strong on law rather than on facts, you may insist on law aspect more than the facts but if you feel that issue in hand pertains more to facts than to law, you may proceed accordingly.

Guide rule no. 6:

While mentioning facts of the case, make sure to be precise yet short. That is to say, be crisp, short and precise without forgetting to mention a vital fact relating to the case/issue.

Guide rule no. 7:

Depending upon the issues, you may have to rely on some supporting case laws in your favor to drive home the point. In which case care must be taken to ensure that the case laws cited pertain to the issue in hand, in your favor and most importantly, not have been overruled or set aside by a subs
equent judgment. Thus in this regard thorough research is required to be made. Any slip up in this connection will lend you in trouble before the appellate authority particularly the ITAT since their members are very well versed with the case laws. In this respect it is important to keep oneself updated on the latest in tax laws. It is always better to mention more recent case laws.

Guide rule no. 8:

Now we come to the argument part. While arguing the case before the CIT(A) or ITAT the following points must be kept in mind:

Start with brief facts of the case in short and crisp manner.

Take grounds of appeal one by one.
Put forth your best argument first.

Narrate the facts precisely and crisply.

In between try to observe the mood of the appellate authority.

Do not argue in a loud manner howsoever strong your case may be.

Refer to paper book wherever necessary to draw attention to vital facts.

Do not unduly criticize or use abusive wordings for the assessing officer.

Do not try to interfere with the appellate authority or the opposite party.

Wait for your turn to speak.

Be extremely thorough with the facts of your case.

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