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TMI Blog1981 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment orders had not been supplied to the assessee. The ld. AAC disposed of the appeals by a common order dt. 11th Sept., 1979 wherein he accepted the assessee's contention that the assessment orders had been antedated and had in fact not been made on 31st March, 1976, since the ITO had fixed the hearing on 18th April, 1976 and had later on changed it to 31st March, 1976 without the knowledge of the assessee. There the matter rested and the Department did not go in appeal before the Tribunal. 3. However, the ITO moved an application under s. 154 for rectification of the appellate order dt.11th Sept., 1979. The ld. AAC did not find any merit in that and dismissed it. However, the AAC at the same time noticed that in entertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be recorded in writing, exempt him from the operation of the provisions of this sub-section." The Commentary by Chaturvedi and Pithisaria, 2nd Edn. Vol. III, on page 2430 on s. 249 (4) says that the provisions of s. 249 (4) are substantive provisions and for the purpose of accrual of the right of appeal the critical and relevant date is the date of issue of notice under s. 143 (2) and the provisions of new s. 249 (4) are applicable to all appeals relating to any assessment year where the notice under s. 143 (2) has been issued on or after 1st Oct., 1975. Thus before holding that the provisions of s. 249 (4) were applicable in these two appeals, it would have to be found as to when the notice under s. 143(2) had been served on the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to appeal accrues. Does a right to appeal accrue depending on the day on which notice under s. 143 (2) is issued as in view of the ld. authors Chaturvedi Pithisaria on any other date or whether s. 249 (4) applies to all appeals filed after 1st Oct., 1975 is a highly disputable question on which certainly there can be two opinions. Under the circumstances therefore, the AAC was clearly in error in holding that he had the power to rectify the final order passed on merits under s. 250 firstly because there was no mistake apparent from the record and secondly because under s. 154 there is no right to rectify an order under s. 249. 8. A number of other rulings have been relied upon which we shall now deal with. In the case of Lakshmiratan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was an error apparent from the record where the ITO charged interest even though the assessee had not applied for extension of time for filing the return and, therefore, the assessee cannot seek rectification of the assessment under s. 154. 11. That rectification is not permissible on a debatable question of law has been settled by the Supreme Court in the case of Volkart Brothers (1972) 82 ITR 50 (SC). We have already held above that the question as to when s. 249 (4) became applicable to the appeals is highly debatable. We have also held that the power under s. 154 does not extend to rectification of an order under s. 249. Here the AAC had admitted the appeals whether rightly or wrongly and had disposed it of on merits. After tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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