TMI Blog2005 (2) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... search has taken place prior to the first day of January, 1997. He drew our attention to clause (b) of sub section (1) of section 253, which provides a direct appeal to the Tribunal against the only order of the Assessing Officer passed under clause (c) of section 158BC and no appeal has been provided against any other order of the Assessing Officer. It has been contended by him that right of appeal, being a statutory right, cannot be availed by any person unless such right has been conferred upon him by the Statute. Accordingly, it was pleaded that in the absence of any provision under section 253(1), no appeal lies directly to the Tribunal against an order of the Assessing Officer under section 154 rectifying the original order under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court judgment in the case of CIT v. Ashoka Engg. Co. [1992] 194 ITR 645. 5. Let us now look into the scheme of the Act. Section 246 and Section 246 A confer right of appeal on the assessee against various orders of the Assessing Officer to the DCIT(Appeals)/CIT(Appeals) as the case may be. The order against which appeal can be filed have been enumerated by the Legislature in these sections which, inter alia, include order of assessment under section 143 and rectification order under section 154. Appeal to the Appellate Tribunal has been provided under section 253. Sub Section 1(a) provides appeal against the orders of DCIT(A) or the CIT(A) as the case may be mentioned therein which inter alia, include their orders under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under section 154 rectifying his order under section 158BC. Accordingly, in our opinion, there is deliberate omission by the Legislature in not providing an appeal directly to the Tribunal against the order of Assessing Officer under section 154 rectifying the order under section 158BC. 6. It is the contention of the ld. Counsel for the assessee that once an order of rectification is passed, the assessment itself is modified and what remains thereafter is not the order of rectification but the assessment as rectified. Though no reference has been made to any decision by the ld. Counsel for the assessee yet this proposition finds support from the judgment of the Madras High Court in the case of Vedantham Raghaviah v. Addl. ITO [1963] 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability to be assessed under this Act". The main argument of the assessee was based on the former clause and reliance was placed on the latter clause only in the alternative." 9. The Hon'ble Gujarat High Court after considering various judgments rejected the said contentions of the assessee and held that no appeal lies against the order of Assessing Officer under section 35(1). Their Lordships observed at pages 335-336 as under:- "It is clear, on a plain reading of section 30, sub-section (1), that a right of appeal is given by that sub-section against various orders and each of the orders against which a right of appeal is conferred is described by reference to the source of the power under which it is made. The clause on which reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectifying an assessment under section 23." 10. The perusal of the above judgment clearly shows that unless separate appeal is provided against the order of rectification, no appeal would lie against such order though such order rectifies the order of assessment. 11. This judgment clearly covers the issue before us. Similar view has been taken by the Hon'ble Madras High Court in the case of CIT v. Vellingiri Gounder Bros. [l953] 24 ITR 166 and in the case of Vr. C. Rm. Adaikkappa Chettiar v. CIT [1970] 78 ITR 285 and also by Calcutta High Court in the case of CIT v. Rajnagar Tea Co. Ltd. [1973] 87 ITR 669. This view is also fortified by the decision of Hon'ble Delhi High Court in the case of CIT v. Mahabir Prasad Sons [1980] 125 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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