2005 (2) TMI 459 - AT - Income Tax

Tribunal dismisses direct appeal against Assessing Officer's order for lack of statutory provision

The Tribunal held that the direct appeal to the Tribunal against the order of the Assessing Officer under section 154 rectifying the original order under ... Appellate Tribunal Issues:- Maintainability of the direct appeal to the Tribunal against the order of the Assessing Officer under section 154 rectifying the original order under section 158BC.Analysis:The issue at hand revolves around the maintainability of a direct appeal to the Tribunal against the order of the Assessing Officer under section 154 rectifying the original order under section 158BC. The contention raised by the ld. Sr. DR was that no provision exists under section 253(1) for such an appeal, emphasizing that the right of appeal is a statutory one and must be specifically conferred by the statute. On the contrary, the ld. counsel for the assessee argued that once an order under section 154 is passed, the original order stands rectified, and should be treated as an order under section 158BC. The argument also highlighted the legislative scheme of Chapter XIV-B and the intent behind providing only one appeal against an order passed by the Assessing Officer under section 158BC. The Tribunal noted the settled legal position that the right of appeal is statutory and not inherent, citing the Supreme Court judgment in CIT v. Ashoka Engg. Co. [1992] 194 ITR 645.Moving forward, the Tribunal delved into the scheme of the Act, specifically referencing sections 246, 246A, and 253 to analyze the provisions for appeals against various orders of the Assessing Officer. It was observed that while rectification proceedings under section 154 are part of the assessment proceedings, separate appeals have been provided for orders under sections 143(3), 147, and 154 passed by the Assessing Officer. The Tribunal highlighted the deliberate omission by the Legislature in not providing a direct appeal to the Tribunal against the order of the Assessing Officer under section 154 rectifying the order under section 158BC.Further, the Tribunal considered the argument put forth by the ld. Counsel for the assessee regarding the legal position that once an order of rectification is passed, the assessment itself is modified, and no appeal against the order under section 154 would arise. This argument found support in the judgment of the Madras High Court and was further substantiated by the decision of the Hon'ble Gujarat High Court in a similar context under the 1922 Act. The Tribunal emphasized that unless a separate appeal is provided against the order of rectification, no appeal would lie against such an order, even if it rectifies the order of assessment.In conclusion, the Tribunal held that the appeal against the order of the Assessing Officer under section 154 rectifying the original order under section 158BC is not maintainable directly to the Tribunal, as no right of appeal has been specifically conferred upon the assessee against such an order under section 253(1) of the Act. The Tribunal directed that the appeal would lie before the CIT(A) under section 246A, allowing the assessee to file an appeal before the CIT(A) with a request for condonation of delay if desired. As a result, the appeal of the assessee was dismissed as non-maintainable.