Preparing Written Arguments for Legal Cases

Statement of Written arguments and how to prepare it

PRELIMINARY POINTS Belief in the case is vital. If one does not trust the assessee and his views, that shall depict in the submissions and drafting. Conviction can be portrayed only when the person who drafts confides in it. Be thorough with the assessment order and facts and also the procedure before CIT(A). Collect all evidences and documents and submit before authorities as additional evidences before ITAT is difficult to establish. Always accompany the written submissions with paper book of documentary evidences. General facts of the case and assessment history needs to reproduced first. Specific facts to each grounds to be written with submissions. Submissions should first mention facts and then judicial reference. Previous assessment years history if relevant to be mentioned. Submissions to be made grounds wise and without prejudice submissions to follow the main ground. One needs to clear and bifurcate between additional grounds and additional submissions. Any new facts to be given in form of additional evidences. Make specific comments and submissions towards AO s allegations Formatting and presentation is imperative. Sequence your arguments from best to less weighted.

Preparation of SOF and Grounds of Appeals Statement of facts should be as exhaustive as possible on each issue. All inconsistencies to be highlighted. Grounds of appeal should be precise and to the point. For each addition, there can be one ground or at the most two if alternative relief is sought. Initial one or two grounds can be on illegality of search, natural justice etc. Each ground can have one/two reasons for allowing the same. Grounds for charging interest and penalty initiation too. If cross examination of witness is not allowed, then to specifically take this ground. Residual ground to modify, add, alter, etc.

Preparation of Paper Books Before CIT(A) & ITAT Paper book contains the key documents for arguments before CIT(A) & ITAT. It should be separate for documents with the AO and additional evidences. For admission of additional evidences, proper request U/R 46A to be made. Basic documents audit report, statements recorded, retractions, sample documents etc in the beginning and then specific documents and evidences, ground wise. All relevant documents and evidences must be filed upto CIT(A) as ITAT may not allow additional evidences. Proper index and certificate to be put. Two copies of paper book to be filed before CIT(A) & 3 copies in ITAT.

Faceless Appeals and Submissions From 25th September 2020, all appeals have come under faceless scheme except search, survey, international tax appeals and black money appeals. Like assessments, faceless appeals are also jurisdiction-less. National Faceless Appeal Centre assigns appeals to appeal units through automated allocation system. Condonation of delay application also to be disposed off by appeal units. Appeal unit admits appeal and the same is intimated to taxpayer by NFAC. NFAC becomes the point from where all communication to and from taxpayer handled. Admission of additional evidence by appeal unit. If any remand report is required in any appeal, the same is assigned to JAO.

If any Additional ground is taken, same is also handled by the appeal unit who decides the admissibility of that or not? CIT-Appeal unit issues draft appeal order u/s 250 to NFAC. Based on quantum and risk parameters Faceless appeal Centre can send it for review. Another appeal unit will review such order which can either concur with it or suggest modification. In case of modification, new appeal unit will do the needful and finalise it. In case of necessity PCCIT, NFAC can transfer faceless appeals to CIT(A) after board s approval. Video hearing to be taken in important cases/issues. Stay of demand application not provided in faceless appeal scheme, hence, to be handled by JAO. Reply to be crystal clear on each addition made by using the format: Addition by AO Facts and evidence How addition is incorrect on fact and law Conclusion in bullet points

Handling Appeal Before Central CIT(A) Appeals of searches and survey. Most of the additions based on facts and documents seized. Summary of additions to be prepared and chart of income and application as per assessment order. Focus should be to shift on normal income as against deemed income u/s 68 to 69C. Cross examination of witnesses, if not granted by AO, to be asked. All possible evidences and arguments to counter the additions should be filed here. Highlight on evidences to counter the statements recorded. In case of remand proceedings before AO, complete details and explanations to be filed with a copy marked to CIT(A). In case of adverse remand report, counter of all negative remarks should be done with proper conclusion. If not possible to defend the issue, then to take alternative argument of addition of Gross Profit or income earned only. Focus on onus and always discharge onus. If it is difficult to defend the case on merit, then shift focus on technical defect and take additional ground and use relevant decision to plead relief.

Practical Aspects of Arguments Before ITAT Highest fact-finding authority hence arguments mainly on facts. Technical grounds to be argued first if supported by Judicial decision. Many decisions are available on nullifying assessment on various technical lapses hence these should be focused. Gist of arguments to be prepared in bullet points on facts and relevant decisions. Paper books to be filed in advance. List of paper book pages and paras relied upon to be given in the gist of submission. In Assessee s appeal- to lead arguments against order and to counter DR s comments. In department s appeal- effectively counter DR s arguments and defend CIT(A) s order.

Speak relevant, to the point and brief but effectively. If the case is covered by any decision of Tribunal bench, High Court or Supreme Court, copy of that should be brought and given and to read relevant part. Time is the essence so do not waste it in court room. Know the mood of the bench. Be truthful and never lie in bench. Speak clearly and confidently. Be very respectful. Highlight on inconsistencies, lack of natural justice and onus.

Use of Judicial Decisions Judicial decisions to be based on facts of the case. On legal issue, prepare analysis of facts of the case and facts in judicial decision and draw parallel. While citing decisions, use relevant ratio and decision by quoting it. In order of preference- SC, Jurisdictional HC, other HC, special bench, same ITAT and other ITAT. If direct decision of Jurisdictional ITAT is available, it should be relied upon for quick relief. Irrelevant decision should not be given. On technical issues, direct judicial decision should be relied first, whereas on factual issues, judicial decisions should come in the end.