Presentation of additional evidence before the CIT(A):

As per Rule 46A, of the Income Tax Rules, 1962 additional evidences may be admitted
by the CIT(A) only in the following circumstances:
1. where the AO has refused to admit evidence which ought to have been admitted; or
[eg. non-acceptance of submission during the assessment proceedings without
reasonable cause thereto]
2.  where the appellant was prevented by sufficient cause from producing the evidence
which he was called upon to produce by the AO; or [eg. non-availability of the evidence
at the time of assessment proceedings]
3. where the appellant was prevented by sufficient cause from producing before the AO
any evidence which is relevant to any ground of appeal ; or [eg. delay in obtaining the
relevant evidence not attributable to the assessee]
4. where the AO has made the order appealed against without giving sufficient
opportunity to the appellant to adduce evidence relevant to any ground of appeal.
While filling the FORM 35 one may opt to request the CIT(A) to admit additional
evidence and submit a list of additional evidence that the appellant wishes to present.
If the additional evidences are accepted by the CIT(A), the same shall then be first also
sent to the AO for cross-examination and rebuttal. The AO shall submit his/her report in
form of a “Remand Report” either by raising or without raising any qualifications to the
admission of additional evidences.
A copy of the remand report shall also be made available to the appellant for rebutting
any qualification raised by the AO. The CIT(A) while dealing with the additional
evidences and disposing of the appeal, shall consider both, the AO’s remand report as
well as the appellant’s reply to the remand report (usally titled as “Rejoinder to the
remand report”)

Drafting  tips for Statement of facts:

1. SOF must be comprehensive and must include all the details in respect of the case .
It should include facts such as the date on which return was filed by the assessee, the
taxable income declared, date of receipt of notice from the AO, details submitted before
the AO,  doubts raised by the AO and the assesses reply in brief.
2. All factual mistakes/ errors/ incorrect observations of the AO must be specifically
mentioned, challenged, and rebutted. This would include instances where the AO has
wrongly stated in the assessment order that certain details were called for and not
submitted. Wherever possible, the correct position should be expressly mentioned.
3. Issues such as lack of proper opportunity of being heard, relying on documents
without providing assessee proper opportunity to cross-examining, non granting of
adjournment by AO without reasonable cause must explicitly be stated in the SOF.
4. Remember this is only a document stating facts or the sequence of events. It must
not consists of arguments against the action of the AO. Arguments against the action of
the AO and explanation regarding the correctness of claim by the assessee is to be
explained by giving ground wise explanation in the written submission made before the
CIT(A).
Drafting tips for Grounds of appeal:
1. Take separate ground for each addition or issue
2. Grounds must be concise and complete, they should not be general and vague.
Though general grounds can be clubbed and presented as one ground of appeal with
sub-points to it.
3. It advisable that the following terminology is used in presenting each ground of
appeal: “ On the facts and the circumstances of the case and in law …….”
4. For presenting alternative pleas the words, “Without prejudice to” should be used.
5. In the end, the appellant must add a prayer to add, amend, or abandon any or all of
the grounds of appeal.
If the appellant omits to include any ground of appeal while filing FORM 35, the same
can subsequently be submitted to the CIT(A) as additional grounds of appeal during the
appellate proceedings. However, raising additional ground may cause a delay on
disposal of the appeal as the notice of additional grounds being raised by the appellant
shall be given to the AO by the CIT(A) and his comments on the same shall be called
for.
Application for stay of demand:
Once the appeal is admitted by the CIT(A), the assessee should make an application to
the AO for a stay of demand raised. Also, in case were subsequent to the finalization of
assessment, penalty proceedings have been initiated by the AO, an application should
be made to the AO to keep the penalty proceedings in abeyance till the disposal of
appeal by the CIT(A) relating to the assessment.
As the CBDT circular, a stay of demand can be obtained by the assessee by paying
20% of the demand raised by the department.
However, there are other aspects to obtaining a stay of demand such as, stay of
demand without payment or payment of an amount less than 20% of the demand, stay
of demand by payment of a higher sum, non granting of stay by the AO etc. These
issues shall be discussed in detail in upcoming articles. But as a general practice, the
AO insists on payment of 20% of the demand in order to grant a stay during the
pendency of the appeal before the CIT(A).
Written submission and oral presentation before the CIT(A):
The written submission to be presented before the CIT(A) must be a detailed one.
Ground wise explanation of each issue contested in the appeal must be given. Further,
as far as possible each contention should be supported by relevant evidence. The
evidence relied upon by the appellant must either be attached with the main submission
in the form of Annexures or may be given as a separate Paper Book. In either case,
references of these evidences should be given in the written submission. Other than
relying on evidences, contentions can also be supported with relevant case laws of the
Supreme Court or the jurisdictional High Court and ITAT. References made to the case
laws should be to the point by stating proper citation and reproducing relevant extracts
of the judgement.
The written submission can either be submitted beforehand to the CIT(A) or may be
presented at the time of the personal hearing.