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2017 (11) TMI 1989 - AT - Income TaxValidity of assessment u/s 143(3) - Question to be raised for the first time - issue the notice u/s 143(2) within 6 months from the end of the financial year in which the return is furnished - as argued notice u/s 143(2) issued by the AO is barred by limitation under proviso to section 143(2) - HELD THAT:- Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. But as per the ratio laid down in NTPC case [1996 (12) TMI 7 - SUPREME COURT], the question of law can be raised at any stage. In the given case, it is not the issue of serving of notice but issue of notice to acquire jurisdiction to complete the assessment u/s 143(3). Hence, it is the question of law and not fact. Moreover, section 292BB cannot be applied in the given case because the issue is not serving of notice but issue of notice to acquire the jurisdiction to complete the assessment u/s 143(3). Therefore, in the given case, issue is not serving of notice but issue of notice within the period of limitation prescribed in proviso to section 143(2) to complete the assessment u/s 143(3). It is clear from the record that AO has issued the notice u/s 143(2) only on 20/10/2009 instead of issuing the notice on or before 30/09/2009. It clearly shows that the AO has no jurisdiction to complete the assessment u/s 143(3). Hence, the assessment completed u/s 143(3) cannot be passed without compliance with the mandatory requirement of notice being issued u/s 143(2), therefore, the assessment order in question is legally unsustainable and the same is hereby quashed. Appeal of assessee allowed.
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