Litigation Support

A reopening is the one proceeding where the first question is not what you owe but whether the Department was entitled to ask. We take that question first, because where it succeeds nothing else needs arguing.

• The section 148A procedure: The enquiry, the show-cause notice, the time given to reply and the order that follows each have to be in order, and the version of the section that governs depends on when your notice was issued. A notice short of the days the section allows has been held void rather than merely irregular.
• The sanction under section 151: Approval has to come from the authority the section names for that year, and it has to record something. We ask for the approval proforma itself rather than the reasons letter, because the defect lives in the second document and most replies never call for it.
• Reasons, and the objections: Borrowed satisfaction, material that does not connect to the assessee, and a change of opinion dressed as fresh information are each answerable — but only if the objections are filed and disposed of before the assessment is framed.

Section 144B moved assessment to a screen and made the written record the whole of the case. An argument that was never typed into the portal does not exist.

• Building the record: We draft submissions that are complete on their face and annex the proof with them, because the officer deciding the matter has never met you and will not ask twice.
• The show-cause and the draft order: A variation proposed against you has to be put to you first. That notice is the last opportunity to put evidence on the record, and the reply to it is where most assessments are won or lost.
• Personal hearing: The right to be heard by video conference has to be asked for, and asked for in time. We make the request and we attend it.

A search changes the arithmetic of a case and the procedure that governs it. Both matter, and the second is frequently where the assessment fails.

• Which scheme applies to you: Searches initiated on or after 1 September 2024 are assessed as a block under Chapter XIV-B; earlier years ran under sections 153A and 153C, or between 2021 and 2024 through section 148. The scheme fixes which years can be opened, and an assessment framed under the wrong one is open to challenge.
• Section 153C and the satisfaction note: Where the material was seized from somebody else, there is a satisfaction note that has to exist, has to be recorded by both officers, and has to refer to material that incriminates you. We call for it.
• Statements recorded under section 132(4): A statement taken during a search is not a confession the Department can rely on without more, and a retraction supported by contemporaneous material has been accepted. The Board has itself instructed officers not to obtain admissions of undisclosed income without evidence.
• Seized electronic records: A printout from a seized device is secondary evidence and needs the certificate the law requires for electronic records — since 1 July 2024 under section 63 of the Bharatiya Sakshya Adhiniyam, which asks for two signatories and the hash value. Where statements of third parties build the addition, cross-examination has to be demanded, in writing and early.

The first appeal is where the record is settled. Everything the Tribunal later reads is what was built here, so we treat this as the substantive stage rather than a formality on the way up.

• Filing and limitation: Form 35 within thirty days of service of the order, with grounds drafted to the defect rather than to the narrative. Smaller matters now go before the Joint Commissioner (Appeals). Delay is condonable on cause shown, and appeals have been admitted well out of time on medical and comparable grounds.
• Additional evidence under Rule 46A: Evidence the Assessing Officer refused to take, or which you were never given the opportunity to produce, can be brought in — but only through an application that engages the rule, and the application has to be made.
• What the authority may and may not do: The Commissioner (Appeals) may confirm, reduce, enhance or annul. The power to set aside and remand was withdrawn in 2001, and the proviso restored in October 2024 reaches a best-judgment assessment under section 144 only. A remand of an assessment framed under section 144B is made without power.
• Stay of demand: An application under section 220(6), and a representation to the superior authority where it is refused. The twenty per cent deposit the instructions speak of is a guideline rather than a statute, and a lower figure or none is open to argument where the addition is prima facie bad.

Where the assessee is a non-resident or a foreign company, or the variation follows a Transfer Pricing order, the Assessing Officer must pass a draft order first. That draft opens a route running alongside the ordinary appeal, and frequently a faster one.

• Electing the Panel: Objections go to the Dispute Resolution Panel within thirty days of the draft order. The election is a one-way door — it is made instead of the ordinary appeal against the final order, so it is taken deliberately rather than by default.
• International taxation matters: We have appeared on Panel references in international taxation, including attribution of profits to a permanent establishment, the characterisation of payments as royalty or fees for technical services, and Transfer Pricing adjustments carried into the draft order.
• The procedural leverage: The Panel's directions bind the Assessing Officer, and the final order has to follow within the time the section allows. A final order passed without the draft stage, or out of time, is open to challenge on that ground alone.

The Tribunal is the last authority that decides facts, which makes it the last place a record can be repaired. Matters are argued by the partner who has read the record, not handed to someone meeting the file on the morning.

• Appeal and cross-objection: Form 36 within sixty days; a cross-objection in Form 36A within thirty days of service, which is the answer where it is the Department that has appealed and you want your own grounds alive.
• Additional grounds on jurisdiction: A purely legal ground going to jurisdiction — sanction, limitation, the wrong section, want of notice — may be taken for the first time before the Tribunal on the National Thermal Power principle, provided the facts are already on the record. We look for one in every matter, because it ends the proceeding instead of restarting it.
• Stay of demand: The Tribunal may stay recovery while the appeal is pending, and the application is made on the strength of the appeal rather than on hardship alone.
• How the bench has ruled: Tribunal orders on the point are checked bench by bench before the hearing, on BharatTax's ITAT case judgments — the Delhi bench among them.
• Beyond the Tribunal: On a substantial question of law we settle the appeal papers and brief counsel for the High Court, and stay on the matter with them rather than handing it over.

A penalty is a separate proceeding with its own requirements, and the assessment going against you does not decide it.

• Section 270A: Under-reporting carries fifty per cent of the tax and mis-reporting two hundred, and which of the two is alleged has to be stated and made out. Immunity under section 270AA is available on an application made within the month allowed, where the tax and interest are paid and no appeal is filed — a decision to be taken early, and on the arithmetic.
• Penalty in search cases and for specified defaults: Sections 271AAB, 271D and 271E each turn on facts that are provable or they are not, and reasonable cause under section 273B answers several of them.
• Prosecution: Proceedings under sections 276C and 276CC, and compounding applications under the Board's guidelines, where the exposure is personal rather than financial.
• Recovery, rectification and refunds: Attachment and garnishee action under sections 220 to 226, adjustment of refunds under section 245, and rectification under section 154 where the mistake is apparent — often the quickest relief available, and the first thing we check for.