An introduction to Faceless Appeals Scheme (FAS) under Income Tax – फेसलेस अपील क्या है

Watch this video for a ready reference on what All about Faceless Appeals 

1. What is faceless appeal?

  • From the name itself, it is clear that both Appellant and the Commissioner (appeals) shall not be knowing each other.
  • There is no physical interface between the Appellant and the Commissioner (Appeals)
  • All the functioning shall be conducted electronically through registered portal.
  • It eliminates the departmental visit for hearing and submission of documents.
  1. What appeals are covered under the scheme? 

As per CBDT press release dated 25 September 2020, under Faceless Appeals, all Income Tax appeals will be finalised in a faceless manner under the faceless ecosystem with the exception of appeals relating to

  • serious frauds,
  • major tax evasion,
  • sensitive & search matters,
  • International tax and
  • Black Money Act.

 

  1. Against which orders, appeal can be filed before CIT(A)?

As per Section 246A, there are 24 types of orders for which appeal can be filed to CIT(A). Some of the scenarios when the appeal can be filed to commissioner (appeals) are as follows:

  • Whenever, after filing return of income, any liability of tax is determined in intimation order u/s 143(1) of the Act and the assessee is of view that he is not liable for such tax, the appeal can be made before commissioner (appeals) requesting for deletion of such liability.
  • Whenever any order is passed under scrutiny assessment u/s 143(3) of the any additional demand of income tax or cancel of refund or reducing of loss, appeal can be made before commissioner (appeals)
  • Whenever assessee fails to reply to any notice for certain information asked by the assessing officer, the assessing officer himself may pass the assessment by best judgment u/s 144 of the Act making any addition of income tax, for this appeal can be made before commissioner (appeals)
  • An order of assessment, reassessment or recomputation u/s 147 except an order passed in pursuance of directions of Dispute Resolution Panel or section 150
  • Likewise, there are many other scenarios when the appeal has to be filed before commissioner (appeals) listed u/s 246A of the Act.
  • It is basically first appellate authority.
  • Section 250 of the Income Tax Act, 1961 deals with the procedure in appeal before the Commissioner (Appeals) wherein the power had been imposed with the Central Government to make a scheme in respect of conduct of appellate procedure before commissioner appeals in a faceless manner. In exercise of such power, the Central Government had issued notification no. 76/2020 dated 25-09-2020.
  • Therefore, w.e.f. 25-09-2020 entire appellate procedure before commissioner (appeals) has been made faceless.

 

  1. How to file before Commissioner (appeals) under faceless regime?

We can file before CIT(A) on registered portal of income tax e-filing in Form No.35 duly signed which will include-

  • Scanned Copy of demand notice & assessment order
  • Statement of Facts and Grounds of appeal
  • Copy of challan of appeal fees

 

  1. What are the pre-conditions for filing appeal before commissioner (appeals)
  • Payment of fees depending on the amount of income assessed by assessing officer
  • If return is filed by the assessee- tax has been paid on income in the return
  • If no return is filed- advance tax payable has to be paid

 

  1. What is time period for filing appeal to commissioner (appeals)? 
  • It is within the period of 30 days after the receipt of the relevant order.

 

  1. Can the appeal be filed after the time limit of 30 days?
  • After 30 days, also the appeal can be filed if there is reasonable ground submitted for such delay
  • The Appeal Unit so selected can either condone the delay and admit the appeal on such ground or can reject.
  • Communication for it shall also be made through NFAC.

 

  1. Whether it is necessary to pay advance tax before making appeal to commissioner (appeals)
  • Exemption from payment of advance tax may be applied by the Appellant by submitting reasonable ground
  • The appeal unit may admit appeal without payment of advance tax on sufficient reason or even reject it.
  • Communication for it shall also be made through NFAC.

 
9. What are different authorities under the faceless appeal scheme?

 

Sl. No.

Authorities

Role

1.      

National Faceless Appeal Centre(NFAC)

It is the central coordinator. It is the Centre Cell with the jurisdiction to dispose the appeal in a centralized manner.

2.     

Regional Faceless Appeal Centre

It will facilitate the conduct of e- appeal proceeding in the cadre controlling region of a Principal Chief Commissioner.

3.      

Appeal Units

It shall be conducting actual function of disposing appeal which will include

Ø  Admitting grounds of appeal

Ø  Making further inquiries as deemed appropriate

Ø  Directing the National Faceless Assessment Center or AO to make further enquiries

Ø  Seeking information or clarification on admitted grounds of appeal

Ø  Providing the opportunity of being heard to the appellant,

Ø  analyzing the material provided by the appellant,

Ø  reviewing the draft order

Ø  Performing other functions required for the purpose of the appeal scheme.

 

10. What is the composition of Appeal Units?

  • It will consist of one or more CIT (Appeals) who shall be disposing off the appeal
  • Also other income tax officers, ministerial staff, executive or consultant for assisting commissioner (appeals).

 

11. How the communication shall be made between the Appellant and the appeal units or between any other persons?

  • All the communication shall only be conducted through National Faceless Appeal Centre only
  • There shall be no direct communication between the Appellant, Appeal Units or any person or units.

 

12. What is the process of conduct of appeals under the faceless appeal regime?

Sl. No.

Function

Procedure of Function

Step 1: Assignment of Appeal to Appeal Unit (1st appeal Unit)

·  After an appeal is filed before commissioner (appeals), the case shall be assigned to one appeal unit

·  Such selection of appeal unit shall be dynamic

·  Selection shall on the basis of automated allocation system.

·  No concept of jurisdictional commissioner (appeal)

·  Location does not matter

·  Case of Kolkata may be given to appeal unit in Delhi

 

Step 2:Intimation of Admission or Rejection of Appeal

·  The Appeal Unit shall either accept the appeal or reject the appeal

 

·  The intimation of such acceptance or rejection shall be intimated to the NFAC by the Appeal Unit

·   The NFAC shall intimate it to the Appellant

Step 3: Gathering of information by the Appeal Unit

 

 

Request to NFAC for information and evidences

·  When the case is admitted by the Appeal Unit, it shall perform the following functions:

a.      Asking to NFAC for information or inquiry from assesse or any other person

b.     Asking of report from assessing officer or national faceless assessment center for information on record or arrange for related enquiry to be conducted by them.

 

Serving of the Notice by the NFAC for information asked by the Appeal Unit

 

·    The NFAC shall vide notice ask the Appellant or Assessing Officer or other for such information

·    The Appellant or Assessing officer other person shall reply to that within date and time specified in the notice.

 

Transfer of information by NFAC

 

·  The NFAC shall forward the collected information and evidences from Appellant or Assessing Officer or other person to Appeal Unit.

 

 

 

Step 4: Submitting of additional grounds

·     Additional Grounds of Appeal may also be submitted, however, on sufficient reasons for omission at the time of filing of appeal.

·      Please see FAQ. No. 13 for entire process.

Step 5: Submitting of additional evidences

·     Additional evidences not submitted to National Faceless Assessment Centre or assessing officer may also be admitted, however, on sufficient reasons for not submitting at the time of original assessment.

·        Please see FAQ. No. 14 for entire process.

Step 6: Request byNational Faceless Assessment Centre or the Assessing Officer for further production of evidences or documents from the Appellant or witness of any other person

·     The National Faceless Assessment Centre or Assessing Officer may request NFAC for asking Appellant to produce any further documents or evidences or for witness of any other person relevant for Appellate proceedings.

 

·  Such request shall be forwarded by NFAC to Appeal Unit

·  Appeal Unit shall make notice for production of such document or for witness of any other person

·  Such notice shall be issued by NFAC to the Appellant or any other person to submit response within the time specified in the notice.

·  Upon response of such notice by Appellant or any other person the same shall be forwarded by NFAC to Appeal Unit

Step 7: Issue of Show Cause Notice (SCN) for Enhancement of assessment or penalty or reduction of refund amount

·     After all the evidences and documents on record, Appeal Unit intends to pass the order which is not in favor of Appellant i.e.

a.      amount of assessment to be increased or

b.     Penalty to be  increased or

c.      Amount of refund to be reduces

·      In such a case the Appeal Unit before doing so, shall make a SCN and send it to NFAC.

·      NFAC shall issue SCN to Appellant

·      Appellant shall file response within the specified time.

·      On receipt of response the NFAC shall forward it to the Appeal Unit.

 

Step 8: Draft Order

·     After considering all the matters on record the Commissioner (appeals) shall pass the Draft Order

·  In the said order the commissioner (appeals) may confirm, reduce, enhance the assessment or can cancel the assessment.

·  Thereafter, the said order shall be passed on to the NFAC.

·  Details of penalty proceedings if any to initiated shall also informed to the NFAC.

Step 9: Allotment of case to another Appeal Unit (2nd Appeal Unit) for review of Draft Order or Finalization of Draft Order and passing appeal order

·     Whenthe amount of tax, penalty, interest or fee in the draft order is more than ____- the case shall be allotted to another Appeal Unit by NFAC for review of Draft Order.

·     When the amount of tax, penalty, interest or fee in the draft order is more than ____- The NFAC may do any of the two option:

 

a.        finalize the draft order without allotting it to another Appeal Unit and pass the Appeal Order

b.        Allot the case to another Appeal Unit

·  Such allotment of Appeal Unit shall be allotted on the basis of automated allocation system.

·  Finalization of draft order shall be made by NGFAC on the basis of risk management strategy and automated.

·  Thereafter appeal order shall be passed by the NFAC.

Step 1o: Review of Draft Order by Another Appeal Unit

·     If the case is allotted to another Appeal Unit, the Draft Order shall be reviewed by another Appeal Unit

·      Another Appeal Unit may agree with the Draft Order or,

·      Another Appeal Unit suggest any variation in it to NFAC

·      In case of no suggestion: The NFAC shall finalize the Draft Order

Step 11: Allotment of Appeal to another Appeal Unit (3rd Appeal Unit)

·     In case any suggestion is received by the 2nd appeal Unit in Step 10 above, The NFAC shall allot the appeal to another Appeal Unit (3rd Appeal Unit)

·     Such allotment of Appeal Unit shall be allotted on the basis of automated allocation system.

·     The 3rd Appeal Unit shall be other than who prepared and reviewed i.e. 1st and 2nd Appeal Unit.

Step 12: Issue of Show Cause Notice by 3rd Appeal Unit

·     The 3rd Appeal Unit shall after considering the suggestions from 2nd appeal may intend to the following:

a.        amount of assessment to be increased or

b.        Penalty to be  increased or

c.         Amount of refund to be reduces

·  Procedure laid down in step 7 for issue of SCN shall be followed by 3rd Appeal Unit and NFAC and response to be submitted by Appellant.

 

Step 12: Revised Draft Order

·     The 3rd Appeal Unit shall prepare the revised draft Order on the basis of all the records.

·     Procedure laid down in step 8 shall be followed in making the revised draft order by the 3rd Appeal Unit.

Step 13: Finalization of revised draft order and appeal order

·     NFAC shall finalize the revised draft order thereafter and pass the appeal.

·     The appeal order shall be passed by the NFAC as per the procedure in Step 9.

Step 14: Communication of passing of Appeal order

·     The appeal order shall be communicated to the following:

·        Appellant

·        Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner

·        National Faceless Assessment Centre or the Assessing Officer

·     Also, SCN for initiating penalty proceeding, if any, shall be issued to the Appellant.

 

 

13. Whether the assessee can take additional ground not specified in the grounds of appeal in Form No. 35 filed before CIT(A)?

 

Section 250(5) specifically empowers the CIT(A) to allow an appellant at the hearing of the appeal to go into any ground of appeal not specified in the Memorandum of Appeal if the CIT(A) is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable.

 

Now, with the introduction of faceless appeal, the following process will be followed:

 

The appellant may file additional grounds for appeal (in a form to be specified by the NFAC) specifying the reason why these were omitted from the appeal.

 

  • The NFAC sends the additional grounds for appeal to the NeAC or the AO for comments, and also to the Appeal Unit.
  • The NeAC or AO provides their comments to the NFAC by the specified or extended deadline (as allowed based on an application made to the NFAC).
  • The NFAC forwards the comments to the Appeal Unit, or notifies the Appeal Unit that no comments have been received.
  • The Appeal Unit after taking into consideration any comments received, may either:
  • Admit the additional grounds, where it is satisfied that the omission of additional grounds from the appeal form was not wilful or unreasonable; or
  • Not admit/reject the additional grounds and record the reasons in writing and intimate the NFAC
  • The NFAC shall intimate the admission / rejection of the additional ground to the appellant.

 

14. Whether additional evidences other than those submitted at the time of original assessment can also be submitted by the Appellant at the time of appeal to commissioner (appeals)?

 

Yes, the appellant may submit additional evidence (other than the evidence produced during the course of the proceedings before the NeAC or the AO) in a form to be specified by the NFAC. The appellant must specify why the case falls within the exceptional circumstances under rule 46A(1) of the rules.

 

  • The NFAC sends the additional evidence to the NeAC or AO to provide a report by the relevant deadline on the admissibility of additional evidence under rule 46A.
  • The NeAC or AO provides the report to the NFAC by the specified or extended deadline (as allowed based on an application made to the NFAC).
  • The NFAC forwards the report to the AU, or notifies the AU that a report has not been received.
  • The AU, after considering the additional evidence and any report provided by the NeAC or AO, admits or rejects the additional evidence, for reasons that must be recorded in writing, and notifies the NFAC.

 

Therefore, if any additional is submitted, the Appellant has to be very careful for reasonable ground for its omission.

 

15. Whether additional matter can be raised by the Commissioner (appeals)?

 

  • The commissioner (appeals) can also raise additional matter arising out appellate proceedings.

 

16. Whether the case may be transferred to any commissioner (appeals)?

  • It can be transferred at any stage by the Principal Chief Commissioner or the Principal Director General, in charge of National Faceless Appeal Centre with the prior approval of Board.

 

17. What is the consequence of non-compliance of any notice or direction under the faceless appeal scheme?

  • For any such non-compliance penalty proceedings may be recommended by the appeal Unit
  • Upon such recommendation NFAC may issue SCN for initiating penalty proceedings.
  • Such proceedings shall also be conducted by allotting the same to any appeal unit on the basis automated system
  • On the basis of which the Appeal Unit may drop the penalty or pass the draft order for penalty
  • On the basis said draft NFAC shall pass the penalty order and issue to the Appellant by the NFAC.

 

18. How the mistake apparent from record in the appeal order by the NFAC shall be rectified?

  • For such rectification an application has to be made to National Faceless Appeal Centre (NFAC)
  • NFAC shall assign such application to one Appeal Unit on automated basis
  • Such Appeal shall provide an opportunity via SCN to other party, i.e. if rectification is filled by Appellant than by giving such opportunity to National faceless assessment centre or Assessing Officer and the Appeal Unit and vice-versa.
  • NFAC shall that SCN to the other party
  • Upon receipt of such response by other party, the NFAC shall forward it to Appeal Unit
  • On the basis of such response the Appeal Unit shall pass the draft order for rectification or for rejection of application for rectification
  • NFAC shall forward that order to appellant, national faceless assessment centre or the assessing officer.

 

19. Where the appeal can be made for order passed by National Faceless Appeal Centre?

  • Against the said order appeal can be made before income tax appellate tribunal (ITAT) having jurisdiction over the jurisdictional Assessing Officer.

 

20. How the communication under the appeal scheme shall be made?

  • shall be exchanged exclusively by electronic mode

 

21. What are major differences between old procedure and the faceless appeal scheme?

 

Sl. No.

Difference

Old Proceedings

Faceless Appeal Scheme

1.

Jurisdictional vs. Dynamic Commissioner (appeals)

Appellate proceedings to be conducted by jurisdictional commissioner (appeals) of the assesse.

Appellate proceedings to be conducted by dynamic Appeal Unit consisting of dynamic commissioner (appeals)

2.

Physical Interface

Physical hearing to be conducted before commissioner (appeals). Section 250(1) of the Income Tax Act, 1961 requires commissioner (appeals) for fixing date and time for conduct of such hearing.

No such physical conduct of hearing.

3.

Written Submission vs. Oral Presentation of matte and evidences of case

The case is required to be explained and presented orally before the commissioner (appeals) along submission of hard copy of documents and evidences.

The case shall now be presented via written submission along with soft copy of all documents and evidences

 

 

 

Some of the practical issues in relation appeal before commissioner (appeals)

22. Whether time taken for making application u/s 270AA for seeking immunity from penalty and prosecution is excluded for computing 30 days from the date of assessment for filing appeal?

 

  • As per proviso to Section 249(2)(b) inserted with effect from AY 2017-18, where the assessee makes an application u/s 270AA (seeking immunity from penalty and prosecution), then Period starting from the Date of application to the Date on which order rejecting the application is served to the assessee shall be excluded for calculating the 30 days period for filing of appeal before CIT(A).

 

23. Whether assessee is required to pay both tax and interest on returned income before filing appeal before CIT(A)?

 

  • The assessee is required to pay tax on admitted income before filing appeal.

It is not mandatory to pay interest. – CIT v. Manoj Kumar Beriwal [2009] 316 ITR 218 (Bombay)

 

24. Can CIT(A) reject an appeal on the ground that the assessee had not paid the taxes due on the basis of revised return which was filed beyond the time permitted?

 

  • Revised return filed without complying the requirements of section 139(5) was non-est and the same could not constitute a return contemplated in section 249(4)(a) as such appeal cannot be rejected for non-payment of demand based on such revised return – Farooq Sarang v. DCIT [2017] 81 taxmann.com 374 (Mumbai tribunal)

 

25. Can an Appeal be filed against an order passed by A.O. giving effect to the appellate order?

 

  • An order giving effect to the appellate order bears the same characteristic as the original order against which appeal was filed. An appeal is nothing but continuation of the original proceedings and hence, an order passed to give effect to the findings of the appellate authority cannot be different in nature. Hence, Appeal can be filed against such order – CIT v. Industrial Machinery Manufacturing P. Ltd. [2006] 282 ITR 595 (Guj.).

 

26. Is there any time limit for disposal of appeal by CIT(Appeals) ?

 

  • With effect from 1.6.1999, the CIT(A), where it is possible, may hear and decide such appeal with in a period of one year from the end of the financial year in which such appeal has been filed. Prior to this there was no time limit. However we can make a petition for early disposal, specifying the reasons for hearing on priority.

Further CBDT vide its Instruction No. 20/2003 dated 29/12/2013 has suggested to pass appellate orders within 15 days from the date of last hearing. It has reiterated the same in its instruction No. F No.279/Misc 53/2003, dated 19.06.2015.

 

27. Where asssessee furnishes additional evidence before CIT(A) without proper application for admission of the same, can CIT reject the same merely for want of proper application?

 

  • If the CIT(A) found that the assessee has furnished evidence without an application for admission of additional evidences, the CIT(A) should direct the assessee to file the additional evidences along with application for admission of the same and after accepting the same, he should call for remand report from AO –Pabitra Mohan Samal v. ITO [2020] 114 taxmann.com 403 (Cuttack – Trib).

 

Where assessee due to his wife’s illness was prevented from producing evidences before Assessing Officer in support of its claim, Commissioner (Appeals) could not refuse to admit such evidences for want of an appropriate application under rule 46A –Padam Lal Dua v. ITO [2016] 76 taxmann.com 354 (Delhi -Trib.)/[2017] 162 ITD 524 (Delhi -Trib.).

 

28. Can CIT(A) set aside the order of the A.O.?

 

  • The Finance Act, 2001, w.e.f. 1.6.2001 has amended section 251 and omitted the express power of setting aside of an assessment order, as such CIT(A) has no express power of setting aside an assessment order. But recently in the case of Union of India v. Umesh Dhaimode [2002] 176 CTR (SC) 97:[1998] 98 ELT 584 (SC), the Supreme Court has held that the power to annul includes the power to remand the case. Though this is a case under Customs Act, but the then language of section 128(2) of Customs Act is identical to the language of section 251(1(a) of the Income- tax Act, as Such the view may be taken that the CIT(A) still has the power to set aside assessment.

However, prior to 1.6.2001 the CIT(A) had express power to set aside assessment u/s 251(1)(a).

 With Special thanks to – CA Nitesh Agarwal

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