[Opinion] Art of Representation in Appeals

Narayan Jain – [2025] 179 taxmann.com 598 (Article)

1. Introduction Representation and Pleading

The art of effective representation is very important, particularly for a professional to succeed. It has become more relevant in Faceless Assessments and Faceless Appeals. There are no separate approaches in the art of representation before the I.T. authorities, appeals before the Tribunal, CIT (Appeal), JCIT (Appeal) or any other forum. The methodology is more or less the same in appeals but a little different in assessments. Broadly we feel that the art of representation is not confined only to the IT authorities or the Court, but anywhere in life, in any discussion forum. Wherever you are, it is the same quality, it is the same approach, which can bring you success. So here are some suggestions.

The person making the representation before the A.O., CIT (Appeal) or other Appellate Authorities should keep in mind the following aspects which may help in making an effective representation:

1. Give due importance to FACTS, furnish Paper Book in appeals

The first suggestion, is to work hard on your brief. There is no substitute for hard work. The stakes involved in tax disputes are normally very huge and, in many cases, very intricate facts are involved. One must master the facts.

We have seen some professionals who while making representation do not narrate the facts first, but straightaway jump to law to show their legal acumen. This is a mistake, because the importance of facts in the case can never be underestimated. Facts are the lifeline of the case and the entire edifice is built on the facts of a case. Therefore, one must study the facts extremely well and narrate relevant facts chronologically before the authorities in the first instance. As pointed by Bertrand Russell

“The degree of one’s emotion varies inversely with one’s knowledge of the facts – the less you know, the hotter you get.”

Statement of facts – It should also be kept in mind that the Statement of facts furnished in first appeal i.e. before the CIT (Appeals)/JCIT (Appeals) have to be enclosed with the appeal before the ITAT. Therefore, one need to be very careful in preparing the Statement of facts at the time of first appeal itself. Sometimes while filing the first appeal, the professionals commit blunder by not preparing and submitting the statement of facts or they mention the same “as per Assessment Order”.

In Statement of facts, one is supposed to mention as to what papers/ documents/books of account and written submissions were furnished or produced or explained or what points were argued; or what decisions were cited and whether compliance was properly made on all occasions. One must properly go through the text of the assessment order and point out if it contains some observations, which are factually erroneous according to you or your client.

While making compliance of the requisitions made in a Faceless scrutiny assessment also, it is advisable to make written submission and enclose with it the requisite documents and evidences.

It is advisable to submit the relevant documents in the form of a paper book even before the CIT (Appeals)/JCIT (Appeal) so that it is easier to prepare a paper book to be filed before the ITAT.

For narrating the facts, it is always convenient to take the assistance of the Paper Book.

2. Furnish affidavit, wherever necessary

Wherever supporting evidence is not possible or not available, an affidavit should be furnished before the authorities. The same is usually accepted unless the authority has any material to controvert the statements contained in such affidavit. Where a fact is alleged, which cannot be borne out by, or is contrary to the record, it should be stated clearly and concisely and supported by a duly sworn affidavit. In this context following decisions are also relevant:

Mehta Parikh & Co. v. CIT [1956] 30 ITR 181, 187 (SC) – The importance and relevance of the averments made in the affidavit cannot be brushed aside without really having any material to contradict the same. It is matter of common knowledge that even in Courts the affidavits are furnished and relied upon. It was held that rejection of an affidavit filed by an assessee was not justified unless the assessee had either been cross examined or called upon to produce documentary evidence in support of the affidavit sworn by him.

L. Sohan Lal Gupta v. CIT [1958] 33 ITR 786 (All.) – The Tribunal was not entitled to reject the Affidavit filed by the assessee on the mere ground that he had produced no documentary evidence; if it was not accepted as sufficient proof, the assessee should have been called upon to produce documentary evidence or he should have been cross examined to find out how far his assertions in the affidavit were correct. [also refer – Malwa Knitting Works v. CIT [1977] 107 ITR 379 at page 381 (MP)].

CIT v. Lunar Diamonds Ltd. [2005] 146 Taxman 691/281 ITR 1 (Del.) – The assessee had filed an affidavit stating that it had not received the notice and the High Court sustained the order of the Tribunal, which had held that under these circumstances, the burden was upon the Department to prove that notice was served upon the assessee within the prescribed time. The Department had failed to prove its case in this regard. The Tribunal was right in setting aside the order of assessment. No substantial question of law arose from its order.

Baban Singh v. Jagdish Singh AIR 1967 SC 68 – Where a false affidavit is shown, the offence would fall u/s 191 and 192 of the Indian Penal Code 1860 Corresponding to section 227 of Bhartiya Nyaya Sanhita, 2023 (Giving false evidence); and section 192 of the Indian Penal Code 1860 Corresponding to section 228 of Bhartiya Nyaya Sanhita, 2023 (Fabricating false evidence). Hence an affidavit has to be considered as a piece of evidence.

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